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NOTEBOOK ON ETHICS, LEGAL ISSUES, AND STANDARDS IN COUNSELLING
Glenn Sheppard, Ed.D., CCC
A Few Interesting Decisions from Case Law
As you know, the interpretation and the development of our ethical practices and professional
standards can be greatly influenced by decisions rendered by our courts, as well as by quasi-judicial
judgements, such as, those made by provincial access to information and privacy commissioners. I have
chosen the following interesting case examples to demonstrate this point:
Case I: A school Counsellor’s Notes
In 1995, a mother, residing within the Cranbrook School District of British Columbia, sought access to an
elementary school counsellor’s notes from counselling sessions with the woman’s two children. She said
that she was interested not in what the notes might say about what the children had said to the
counsellor but rather what the counsellor had said to them.
The school counsellor and her school district refused to release the counselling notes. The School
District invoked the argument that such refusal was permitted under section 19(1)a of the Freedom to
Information Act (FIPPA) of British Columbia. This section permits discretionary refusal of such a request
if disclosure can reasonably be predicted to negatively affect the mental or physical health or the safety
of the person(s) involved. The Information and Privacy Commissioner of B. C. was asked, by this parent,
to rule on this refusal decision. The commissioner ruled that the counsellor’s notes were in the custody
and control of the School District which meant that the Commissioner had the jurisdiction to rule on the
matter because such notes were covered by the provisions of the FIPPA.
The counsellor, dissatisfied with the Commissioner’s ruling, took the matter to Court. She argued before
the Court that her notes were really her personal possession made only as an aid to her and , in fact, she
reasoned she was not required to keep counselling notes anyway and that she kept them in a notebook
at home.
The Court ruled in favour of the Commissioner’s view that the notes were under the custody and control
of the School District because they originated as an aspect of the counsellor’s work as a District
Employee. Therefore, the question of access to these counselling notes came under the authority of the
freedom in Information and Protection of Privacy Act.
The jurisdictional decision notwithstanding, the question of whether or not the notes should be released
in this instance warranted additional consideration. On this matter the counsellor argued that she had
an ethical obligation to keep the notes confidential. The court was understanding of this position,
however, the issue of disclosure was not specifically before the Court in this case but rather the issue of
jurisdiction. The judge did show some concern for the protection of children’s right to privacy. It was
noted that in the case of a child the parent or guardian normally has the right to consent to the release
of the child’s counselling record. In this case, it was the parent who was requesting the release of the
child’s counselling record. In this case, it was the parent who was requesting the release and was,
therefore, in a position to consent to her own request. This raises privacy protection concerns for sure!
By the way, this decision did not necessarily diminish the school counsellor’s responsibility to treat her
counselling notes as confidential information. (Nielson v. British Columbia(Information and Privacy
Commissioner), 08/07/1998. B. C. J. No. 1640, Vancouver, B. C.)
Case II: The Firing of a Social Worker
In July, 2000, the Newfoundland Supreme Court dismissed the claim of a social worker that he was
unfairly fired for misconduct. In 1979-81, the social worker was working as a youth counsellor at a St.
John’s detention center for girls where a girl of 14 was admitted and became one of his clients there. It
was clear to the Court that the counsellor has consensual sex with this girl just after she turned sixteen
and while she was living in a community group home. This relationship continued for nearly three years
and was not disclosed by the girl until 1995. At this time the social worker was a regional supervisor for
the Youth Detention Center where he and the girl had first met. The court ruled that dismissal by his
employer was not an unreasonable consequence for this type of conduct. In the light of this case,
readers might like to review the “post-termination’ prohibition as stated in the CCA Code of Ethics.
(Evening Telegram, St. John’s, NF, 15/07/00)
Case III: Access to the Questions, Answers, and Scoring Procedures of Standardized Tests
In 1994 parents residing within the jurisdiction of the Lincoln County Board of Education wanted to
challenge the school psychologist’s decision that their daughter was not a gifted student. In making this
judgement, the psychologist had relied heavily on the results of the Stanford Binet Intelligence Scales.
The School Board refused the parents’ “freedom of information” request to see all the answers and the
scoring procedures for their daughter’s performance on the Stanford-Binet. School authorities argued
that they had a discretionary right of refusal under a section of the Ontario Freedom of Information and
Protection of Privacy Act.
They further reasoned that the Stanford-Binet was purchased from a third party, in this case, Nelson
Canada, and that maintenance of confidentiality with respect to answers and scoring procedures was
essential to the integrity and continuing validity of this psychometric instrument. Nelson Canada also
argued that disclosure would reveal a trade secret and have economic consequence for it.
When the parents referred this case to the Information and Privacy Commissioner his decision was that
the one-page creativity test developed by the School Board should be released to the parents along with
a separated copy of the fourteen pages of the Stanford-Binet Booklet on which the student’s answers
were recorded. Because a release of this booklet would reveal the scoring pages and invalidate the Test,
the School Board refused the order and went to Court. The Board argued that the Commissioner
(actually an assistant commissioner in this instance) ignored the significant consequences of releasing
these pages, particularly those relating to the Vocabulary and Absurdities sections of the Test. The Court
agreed with the School Board and considered the Commissioner’s decision unreasonable because he
had failed to take into account these consequences to the validity of the Test. The commissioner’s
decision was overturned by the Court and the Board did not have to make any such release of the
Stanford-Binet information. (Lincoln County Board of Education v. Ontario (Information and ORivacy
Commissioner). [1994] O.J. No.2899(Div. Ct.)
Case IV: A Young Person’s Consent to Common Law
(I am including this decision of fourteen years ago because it surprised many people at the time. Also,
because the concept of competency to consent has emerged since that time as taking precedence over
any arbitrary age limit such as in the concept of ‘minor’)
In this case, a pregnant sixteen year old girl had left home to seek access to an abortion. Her parents
were opposed to her obtaining an abortion on moral grounds, and they went to court to prevent it
arguing that she was not competent to give such consent. Although the court expressed empathy for the
parents in these circumstances, it concluded that the girl understood the abortion procedure and the
associated risks. She was therefore judged competent to give her informed consent and her parents’
objections were overruled. Interestingly, the Court ruled that a parent’s rights to make treatment
decisions for their child terminates if and when the child achieves a sufficient understanding and
intelligence to fully comprehend the treatment proposed on recommended. (C. v. Wren, 1987, 35 D. L.
R. (4th) 419 Altert
Child abuse and the duty to report
Most of us are aware of our duty to report suspected instances of child abuse. However, I do speak with
counsellors who, despite their commitment to uphold this duty, have not yet read the full extend of this
responsibility as stated in the Act that outlines this statutory duty in the province in which they work. I
thought, therefore, that it might be helpful to quote in this Notebook the complete text of this
responsibility as stated in the Act in Newfoundland and Labrador (it is very similar in all other provinces).
It is found in the Child, Youth and Family Services Act, S.N.L. 1998 C-12.1. Section 15 of this statute
contains the Duty to Report. It states that any person in the course of their professional duties who has
reasonable grounds to suspect that a child is in any of the circumstances as started in Section 14 shall
immediately report the matter to a Director, a social worker, or a peace officer. In Section 2(1)(d) a child
is defined as “..person actually or apparently under the age of 16 years.”
Under Section 14, a child is in need of protective intervention where the child is:
(a) is, or is at risk of being, physically harmed by the action or lack of appropriate action by the
child’s parent;
(b) is, or is at risk of being, sexually abused or exploited by the child’s parent;
(c) is emotionally harmed by the parent’s conduct;
(d) is, or is at risk of being, physically harmed by a person and the child’s parent does not protect
the child;
(e) is, or is at risk of being, sexually abused or exploited by a person and the child’s parent does not
protect the child;
(f) is being emotionally harmed by a person and the child’s parent does not protect the child;
(g) is in the custody of a parent who refuses or fails to obtain or permit essential medical,
psychiatric, surgical or remedial care or treatment to be given to the child when recommended
by a qualified health practitioner;
(h) is abandoned;
(i) has no living parent or a parent is unavailable to care for the child and has not made adequate
provision for the child’s care;
(j) is living in a situation where there is violence; or
(k) is actually or apparently under 12 years of age and has
i.
been left without adequate supervision,
ii.
allegedly killed or seriously injured another person or has caused serious
damage to another person’s property, or
iii.
on more than one occasion caused injury to another person or other living thing
or threatened, either with or without weapons, to cause injury to another
person or other living thing, either with the parent’s encouragement or because
the parent does not respond adequately to the situation.
P.S. If you have not already done so I invite you to obtain a copy of our CCA publication Standards of
Practice for Counsellors, and if you already have copy please tell others about it. And remember, your
comments on anything that appears in the Notebook are always welcome.
Custody Evaluations
*Counselling Practice Alert *
It seems appropriate for the Canadian Counselling Association to issue occasional ‘Practice Alerts’ to its
members. Such alerts originate with the CCA Ethics Committee and are based on its analysis and
reflection of enquires it receives and/or complaints made against CCA members over a period of time.
The alert is intended to focus the attention of members on some aspect of counselling practice including
on the ethical challenges associated with practice in a particular area. This is our first alert! It concerns
the area of child custody evaluations. These are evaluations typically used in legal disputes around a
child’s access, care and relationship with biological, foster and adoptive parent(s), and/or with any other
legal guardian.
Child custody evaluations can be a high-risk practice area because they typically occur within an
adversarial circumstance in which there is an increased probability that one or more parties will be
dissatisfied by an evaluation report. Such dissatisfaction can lead to a disciplinary complaint. The CCA
Ethics Committee has dealt with four such complaints against CCA members in the past 24 months.
Although only one of these complaints led to a judgement of significant inappropriate conduct, in its
investigation the Committee noted some procedural and reporting deficiencies with respect to two of
the others. Regardless of whether complaints are warranted or the investigative outcome, complaints
cause considerable stress and uncertainty for members.
Counsellors, therefore, are advised to consider the following before engaging in this practice area, and
when conducting child custody evaluations.
•
Before engaging in any new practice area, members are reminded of their ethical obligations as
expressed in articles A3 Boundaries of Competence and A4 Supervision and Consultation of our
Code of Ethics.
•
Our draft of Standards with respect to Boundaries of Competence now states the following:
Counsellors should extend their professional services to any additional areas of expertise only
after they have secured adequate supervision from supervisors with demonstrative expertise in
the practice area.
Supervisors should have a high level of expertise in the area. Whenever possible preference
should be given to supervisors whose area of expertise is verified by an independent process
such as: certification, registration, or licensing.
The following guidelines should prove helpful:
• Always give priority to the best interests of the child in all custody evaluations.
• Ensure that you have no prior or current relationship with the children and the adults primarily
involved in the custody evaluation other than that of evaluator.
• Counsellors must provide objective and impartial assessments that must not be compromised
by the perspectives of the individuals or agency requesting the evaluation or paying for it.
Ideally, custody evaluations should be court-ordered, or mutually agreed on by participants.
• Secure a signed agreement before beginning the evaluation which clarifies such aspect as:
financial arrangement
who will be seen
time frame
•
•
•
•
•
who will receive copies of the report
The counsellor should obtain informed consent from the adults involved and from older children
to the extent possible. This should include informing participants as to who will receive the
report and the associated limits to confidentiality.
When counsellors have reasonable grounds to suspect child abuse during the course of their
custody evaluations they must adhere to their statutory obligations to report it to the
appropriate authorities.
Counsellors should keep complete records of the evaluation process.
Counsellors should restrict comments and recommendations to those which can be substituted
by the sources of data obtained and the integration of all available information,
Other useful considerations include: avoid confusing therapeutic and assessment roles, seek to
ensure at the outset of the assessment that you have offered equal opportunity for the
disputing parties to present their views, ensure balanced access to the key parties, avoiding
discussion of events, observations or conclusions until the report is completed and fastidiously
record all contacts or events (who, duration, content, etc.).
The following references are helpful resources;
Bricklin. B. (1995). The Custody Evaluation Handbook. New York: Brunner/Mazel.
McHale, M. J.(1991). Family Law. In M. R. Uhlemann and D. Turner (Eds.) (1998), A Legal Handbook for
the Helping Professional. Second Edition. Victoria, B.C.: Sedgewick Society for Consumer and Public
Education, P140- 162.
Stahl, P.M. (1994) Conducting Child Custody Evaluations: A Comprehensive Guide. Thousand Oaks. Sage.
Halon, Robert L. (1990). “The comprehensive child custody evaluation”. American Journal of Forensic
Psychology, 8, 3, 19-46.
Kaplan, F K., Landau, Barbara L. and WcWhinney, Robert L.(1988). Custody/Access Assessment
GuIdelines. Toronto: Ontario Psychological Foundation.
Dealing with Requests for Information
Counsellors are frequently confronted with requests for information about their clients. These requests may be of
an informal nature, expressed by telephone, letter, and sometimes through e-mail. Other requests can he more
formal, such as a legal request for information known as a subpoena. To this issue of COGNICA I have a few notes
on dealing with those informal requests (look for the next issue for notes on responding to subpoenas)
The following vignettes illustrate a variety of ways by which informal requests can he made and their potential for
inadvertently violating counsellor-client confidentiality.
Vignette l
Barbara is a secretary for a private practice with tour full time counsellors, one of whom is clinical director. She
receives the following telephone request.
Caller, "I am Albert Newell and I know that my wife, Shirley is going to your centre for counselling and would like to
speak with whoever she is seeing there".
Barbara, “Mrs. Newell is being seen by Miss Kennedy. Miss Kennedy is not available now but I can have her call
you”.
Vignette II
A counsellor, working atone in a part-time private practice, has been seeing a 23 year old female client. On her first
visit she was accompanied by her father, although the father did not participate in the counselling session. The
client has attended two sessions and the counsellor subsequently receives the following telephone call.
Caller, ‘Hello, I am Mark Grossman, Simone Grossman’s father. You might remember that I came and waited for
her on her first visit.’
Counsellor, ‘Hello, Mr. Grossman, yes I do remember your visit was very supportive of Simone. What can I do for
you?’
Caller, ‘Well I would like to come in to speak with you about Simone’
Counsellor, ‘Okay, Mr. Grossman, would Friday at 2 pm be okay for you’.
Vignette III
An addictions counsellor receives a letter from Ms. Breton, a local lawyer. In the letter, Ms. Breton identifies Mr.
Crane as one of the counsellor’s clients and later in the letter she makes the following request. “I am presently
preparing a legal claim on behalf of Mr. Crane and he has given me permission to speak to you. We both believe
that you may have information which can help with this claim. Please phone my office so that we can find a
mutually satisfactory time to meet”.
The counsellor phones Ms. Breton’s office, and as requested and arranges an appointment.
What do these three vignettes have in common? In my opinion, the secretary and both counsellors have acted
inappropriately. The secretary has made an inappropriate disclosure and each of the counsellors has acted without
the benefit of client informed consent.
In Vignette l Barbara has confirmed that Mrs. Newell is a client at the clinic and has also named her counsellor. The
caller is not entitled to any of this information, even if he is the client’s husband. In any case, a telephone call
cannot reliably confirm the caller’s identity.
An appropriate response by the secretary would be something like, “I am sorry but I am not at liberty to provide
information about any client. In fact, we don’t disclose who our clients are or provide any information unless we
have their permission to do so. You may speak to Ms. Kennedy, our Clinic Director if you wish”.
An appropriate alternative would be for the secretary to refer all such calls to the Director or another counsellor
who could make a similar response to such requests.
Vignette II In this circumstance, the counsellor will need Simone’s informed consent before agreeing to meet with
her father. So a response something like “I am sorry Mr. Grossman but since Simone is an adult, I will need her
permission to meet with you. Even then, I would prefer to see both of you together”.
Let’s suppose that Mr. Grossman responds with “Oh, I understand but I do have her permission to speak with you”.
This would still not fulfill the conditions for informed consent. It would be appropriate to reply with something like
‘It is not that I don’t believe you Mr. Grossman, but it is my obligation to get permission directly, so I will need to
hear from Simone. Maybe she and I can discuss your request when she comes for her next visit unless you can
come together then”.
Vignette lll Even though this request arrives with more apparent formality, it too, must meet the conditions of
informed consent. There is no completed informed consent form accompanying the letter. Even if there was such a
form with the letter it would not be appropriate to discuss the request with the client before formulating a reply.
In summary, such requests from lawyers should be treated like any other informal request that may impact on a
client’s confidentiality. Without the client’s consent, it would be inappropriate to confirm to the lawyer that Mr.
Crane is, in fact, your client.
[I welcome critical comment on any of the vignettes or opinions expressed in these notes.]
Notebook on Ethics, Legal Issues, and Standards for Counsellors
Glenn Sheppard, Ed.D. CCC
Duty to Warn
In our Code of Ethics we have the following declaration:
B3. Duty to Warn
When counsellors become aware of their client's Intent or potential to place others in clear or
imminent danger, they use reasonable care to give threatened persons such warnings as are
essential to avert foreseeable dangers.
This duty has emerged in recent years as both an ethical obligation and a legal principle. However its
status as a legal duty remains somewhat unclear in Canadian case law and there is no general
overarching statutory provision to assist us. However, since the landmark Tarasoff duty to warn case in
the United States in 1974 that country has developed an extensive body of case law and has enacted
many duty to warn legislative statutes. This difference between the two countries may reflect our
different legal traditions with Canada influenced by the reluctance of English courts to accept the
concept of vicarious liability in which professionals can be held liable for injuries inflicted by clients on
third parties.
Very briefly, the Tarasoff case involved Dr. Thomas Moore, a psychologist working at the Counselling
Centre of the University of California at Berkeley. One of his clients at the Centre was a 26 year old
graduate student who during his counselling sessions disclosed his wish to kill Taliana Tarosoff, his
girlfriend. Dr. Moore took his clients disclosure seriously and reported his concerns to the campus police
and expressed his intention to proceed with committal of his client for a psychiatric evaluation. The
campus police interviewed the student but released him from custody when he promised to stay away
from Ms. Tarasoff. Neither the police nor Dr. Moore warned Taliana Tarasoff of the threat and the
student did not return to see his counsellor. Just two months later he fatally stabbed her on the steps of
her parents’ home. Her parents initiated a lawsuit against Dr. Moore, the police, and the Board of
Regents of the University. Although the Tarasoff claim was dismissed twice in the lower courts, when it
went to the Supreme Court of California it concluded that Dr. Moore had a duty to warn Ms. Tarasoff or
her parents of the threat. The court stated that confidentiality must yield to the duty to prevent danger
to others when that danger is foreseeable. This frequently referenced case gave rise to the now well
known maxim expressed by the judge at the time “the protective privilege ends when the public peril
begins.”
A number of court cases in Canada have referred to the Tarasoff decision and it has been mentioned in a
number of legal judgements. Although there has been no exact example of this case in Canadian law,
Picard and Robinson, authors of Legal Liability of Doctors and Hospitals in Canada, express the following
view:
Despite the dearth of Canadian case-law, it seems likely that, faced with a true Tarasoff issue, a
Canadian court would endorse the general principles underlying the California Supreme Court
decision. At some point the need to protect the public from imminent danger becomes
paramount, and at that point the doctor’s duty of confidentiality ends and is replaced by a duty
to warn the person or persons at risk. (1996, p. 34)
In 1999 the Supreme Court of Canada, in the case of Smith v. Jones, did rule on the appropriateness of
breaking confidentiality in a particular public safety circumstance. In this case, Jones was referred to Dr.
Smith by his defence lawyer for a psychiatric evaluation following his being charged with the aggravated
sexual assault of a prostitute in Vancouver. During the evaluation Jones disclosed to Dr. Smith, in some
detail, his plans to kidnap, rape and kill prostitutes. Dr. Smith was not called to testify at Jones’s trial at
which he pleaded guilty to aggravated assault.
The psychiatrist felt that he had to disclose, for the sake of public safety, what he knew of Jones’
expressed intentions and he made application to the British Columbia Supreme Court for permission to
disclose the information to the Crown and to the police. The court ruled that he had a duty to make such
a declaration, Jones’ lawyer argued that such a disclosure would be a breach of his lawyer-client
privilege since he had referred Jones to Dr. Smith. Dr. Smith made the disclosures.
Jones took the case to the Supreme Court of Canada. It unanimously ruled that not even solicitor-client
privilege is absolute but may have to be breeched in certain circumstances in which there is a danger to
public safety. The nine justices found that Dr. Smith had acted appropriately in the particular
circumstances. However, they, unlike the B.C. Supreme Court, did not clarify if the duty to warn in this
case was mandatory or discretionary. However, the court set out the following three factors that must
be considered when deciding when the concern for public safety could warrant the breaching of lawyerclient privilege. They are:
1. Is there a clear risk to an identifiable person or group of persons?
2. Is there a risk of serious bodily harm or death?
3. Is the danger imminent?
(Smith v. Jones, 1999, scc.)
Despite the fact that Canadian law is not yet crystal clear with respect to our duty to warn, this Supreme
Court decision goes a long way to clarify this ethical/legal obligation. It is clear that these three factors
as the test of the risks to public safety apply not only for lawyers and psychiatrists but for all other
professionals who have fiduciary obligations. This includes all of us as counsellors and it is for this reason
that we have provided on page 9-10 of our Standards of Practice for Counsellors steps and actions to be
taken should any of us have to act on this challenging ethical duty. I invite you to read it carefully, and to
seek opportunities to discuss it with colleagues.
What is Counselling?
A Search for a Definition
Those of us who work as professional counsellors are confident that we know what counselling is and
when given an opportunity we are ready and eager to tell others what we do. However, when
challenged to provide a crisp, comprehensive, and boundary-setting definition of counselling, we often
falter. This may be because of the diversity of counselling approaches, its grounding in many theoretical
perspectives, and the range of human problems for which counselling can be helpful. This definitional
challenge is made all the more difficult because of the myriad of uses and activities for which the term
‘counselling’ is applied.
CCA is now being asked to create its definition of professional counselling. Those who request such a
definition hope for some relief from the current state of semantic promiscuity, and for assistance in
determining if a particular activity is within the counselling domain or outside it. Given the current
striving for the statutory regulation of counselling it is assumed that a clear and comprehensive
associational definition could provide the basis for establishing the scope of practice provision within
any regulatory statute.
For this Notebook I thought it might be appropriate to ask all our members to reflect on this challenge
of creating a CCA definition of counselling. You can help by sharing definitions with us, both any that you
have found useful and any that you have created.
As way of getting the ball rolling, I am including the following definitions of professional counselling
from my collection:
•
The British Association for Counselling (BAC), now the BACP, may have been the first
professional association to adopt a definition of professional counselling. In 1986 it published
the following definition:
Counselling is the skilled and principled use of relationship to facilitate self- knowledge, emotional
acceptance and growth and the optimal development of personal resources. The overall aim is to provide
an opportunity to work towards living more satisfyingly and resourcefully. Counselling relationships will
vary according to need but may be concerned with developmental issues, addressing and resolving
specific problems, making decisions, coping with crisis, developing personal insights and knowledge,
working through feelings of inner conflict or improving relationships with others.
The counsellor’s role is to facilitate the clients work in ways that respect the client’s values, personal
resources and capacity for self-determination.
BAC (1986) Counselling-Definition of terms in use with expansion and rationale (Information Sheet 1).
Rugby: British Association for Counselling.
•
In 1993, Feltharn and Dryden included the following definition of counseling in their specialized
Dictionary of Counselling:
Counselling is a principled relationship characterised by the application of one or more psychological
theories and a recognised set of communication skills, modified by experience, intuition and other
interpersonal factors, to clients’ intimate concerns, problems or aspirations. Its predominant ethos is one
of facilitation rather than of advice-giving or coercion. It may be of very brief or long duration, take place
in an organisational or private practice setting and may or may not overlap with practical, medical and
other matters of personal welfare.
It is both a distinctive activity undertaken by people agreeing to occupy the roles of counsellor and client
and it is an emergent profession.... It is a service sought by people in distress or in some degree of
confusion who wish to discuss and resolve these in a relationship which is more disciplined and
confidential than friendship, and perhaps less stigmatising than helping relationships offered in
traditional medical or psychiatric settings.
Feitham, C. and Dryden, W. (1993) Dictionary of Counselling. London, : Whurr
In 1997 the Governing Council of the American Counselling Association(ACA) accepted the
following definition of professional counselling:
•
Counseling is the application of mental health, psychological or human development principles, through
cognitive, affective, behavioral or systemic interventions, strategies that address wellness, personal
growth, or career development, as well as pathology. (http://counseling. org)
The definition also includes these additional attributes:
•
Counseling deals with wellness, personal growth, career, and pathological concerns. In other
words, counselors work in areas that involve relationships (Casey, 1996). These areas include
intra- and interpersonal concerns related to finding meaning and adjustment in such settings as
schools, families, and careers.
•
Counseling is conducted with persons who are considered to be functioning well and those who
are having more serious problems. Counseling meets the needs of a wide spectrum of people.
Clients seen by counselors have developmental or situational concerns that require help in
regard to adjustment or remediation. Their problems often require short-term intervention, but
occasionally treatment may be extended to encompass disorders included in the Diagnostic and
Statistical Manual of Mental Disorders (1994) of the American Psychiatric Association.
•
Counseling is theory based. Counselors draw from a number of theoretical approaches, including
those that are cognitive, affective, behavioral, and systemic. These theories may be applied to
individuals, groups, and families.
•
Counseling is a process that maybe developmental or intervening. Counselors focus on their
clients’ goals. Thus, counseling involves both choice and change. In some cases, “counseling is a
rehearsal for action” (Casey, 1996, p. 176)
Source: Gladding, S.T. ( 2004). Counseling: A Comprehensive Profession (5th edition). Upper Saddle
River, NJ: Merrill/Prentice Hall. P 6-7.
NOTEBOOK ON ETHICS, LEGAL ISSUES AND STANDARDS IN COUNSELLING
Glenn Sheppard, Ed.D, CCC
Guidelines for Dealing with Subpoenas and Court Orders
In the Ethics Notebook, for October, 1999, I suggested that counsellors should treat requests from
lawyers for client information like any other informal request. Proceed with caution! Such requests must
always meet the conditions for ‘informed consent’. All forms for the release of client information should
be checked carefully and, whenever possible, counsellors should contact the client directly regarding the
request. Should written informal consent be obtained then any disclosures should be limited to
boundaries set within the informed consent process.
Formal requests from a court for information, on the other hand, should be handled differently. Such
requests are either subpoenas or court orders. A subpoena is a legal command to provide information or
to give testimony. Sometimes it can require both testimony and disclosure of specific documents. This is
called subpoenas duos tecum. Since in Canada, unlike the United States, there is no counsellor-client
privilege, there is virtually no information generated within these counselling relationships which is
outside the reach of the courts. However, judges are typically sensitive to the counsellors’ ethical
responsibility to protect their clients’ confidentiality, and do not require us to breach confidentiality
unless there are compelling reasons to do so. Judges often apply the Wigmore criteria to enable them to
adjudicate whether the breaching of confidentiality is warrant in a particular instance, see Cognica for
further details.
The following guidelines, although not legal advice, may prove helpful should you receive a subpoena or
court order,
•
Always make a timely response to such requests. (But don’t panic!) Counsellors are encouraged to
consult with a lawyer before making any release of ‘subpoenaed’ information. Counsellors are also
reminded that a decision to comply with such requests will not leave them legally vulnerable to a
charge of breach of confidentiality. Nevertheless, disclosure should be restricted to only the
information requested and disclosing additional information may be seen as a confidentiality
violation.
•
Never destroy information in response to a subpoena or to an expectation of receiving one. Such
conduct, if proven, may be judged as obstruction of justice or contempt of court.
•
Counsellors should consult their clients when in receipt of a subpoena or court order. After all
‘confidentiality’ belongs to the client not to the counsellor. Therefore, arguments advanced to court,
on behalf of the client to cancel or further restrict the information requested may receive a more
sympathetic hearing.
•
Sometimes there are requests for informational disclosure which may have significant negative
consequences. For example, court disclosure of test items, psychometric protocol, and other testing
data may seriously affect the validity of a test and its integrity as a psychometric instrument. This is
the type of request to which a counsellor may decide to resist compliance but, nevertheless, will
need to make a formal response indicating the rationale for any concerns. It would be appropriate
to seek legal counsel in advancing any such objections to the court. There are a number of court
decisions in Canada which support the withholding of such psychometric information. However,
lawyers are best equipped to assist in presenting such legally based arguments. (I will share one
such case in a future issue of Cognica).
Sometimes through negotiations with the requestor of the subpoena, a counsellor’s concerns about the
disclosure of certain information will be respected, and more restricted boundaries set for the request.
• There may be compelling reasons for a counsellor, in response to a particular subpoena, to file a
motion to have it cancelled or modified. This will require the assistance of a lawyer. Also, a counsellor
may seek the guidance of the court on a particular subpoena. For example, with respect to a demand for
certain psychometric information a counsellor could argue that a disclosure would adversely affect third
party interests such as those of test publishers and the public who wish to preserve the validity and
integrity of certain psychometric instruments. This, too, could result in a more restricted disclosure than
initially decided. Sometimes subpoenas are very broad to maximize access to information without much
sensitivity to the nature of the information being requested.
In the final analysis, if a subpoena or court order is not withdrawn or modified, then counsellors must
comply with the original request for disclosure with or without their client’s consent.
NOTEBOOK ON ETHICS, LEGAL ISSUES, AND STANDARDS FOR COUNSELLORS
Glenn Sheppard Ed.D. CCC
The issue of confidentiality when a client dies
It is often challenging for counsellors when a current or previous client dies. Like all experiences with
death, it is can be effected by many factors, such as: the recency of the relationship, length and intensity
of the counselling relationship, the degree of counselling success with the client, the cause of death,
whether it was anticipated or not, and so forth. One of the many questions that can confront the
counsellor on such occasions is “What is my responsibility with respect to the client’s right to
confidentiality?”
The CCA Ethics Committee was recently asked by a member to address this question and the following is
intended to provide direction to counsellors.
•
The right to confidentiality does not end with the death of the client and counsellors have a
continuing responsibility to protect client confidentiality.
•
A deceased client’s right to confidentiality can be transferred to a legally appropriate personal
representative of the client. However, this person would not usually be a parent in the case of adult
clients. This representative can then exercise informed consent on behalf of the client.
•
Counsellors are advised to demand formal verification of an individual’s claim to be legally
sanctioned to act on behalf of a deceased client.
•
Counsellors should consult and/or inform the personal representative in the same way they
would the client with respect to any request for access to the client’s counselling record, including
informing them of court orders and subpoenas.
•
Counsellors in such situations continue to have the duty to retain client counselling records for a
minimum of 7 years from the conclusion of counselling.
CCA policy and practice with respect to membership list
CCA has never sold, or otherwise provided, our membership mailing list to anyone. We have no
intention of doing so unless we obtain your expressed permission. Members with CCC will know that
they are asked if they wish to give consent to having their name placed on our CCC Directory online and
most give this consent. The ‘Find a Counsellor’ feature of our website does allow visitors to gain access
to information, including e-mail addresses. This provision does leave those members open to receiving
unsolicited e-mails, including from those who may have something to promote or sell. The good news is
that members have experienced very little of this type of unwanted activity, and, in any case, we can we
can do little to prevent it from happening. However, we ask all our CCA members to refrain from
harvesting our CCC Directory to promote or market a product or service, to conduct research, or for
any other reason beyond its expressed purpose.
A Landmark Decision with Implications for counsellors in Canada
In 1999, the Supreme Court of Canada, in the case of R. v. Mills, released a decision of profound legal
and social significance and one which has implications for counsellors in Canada. The essential task in
this case was for the Court to find an appropriate balance of a complainant’s right to privacy in sexual
assault cases and the accused’s right to a fair trial and a full defence.
The series of events leading up to this historic case are as follows. In the early 1990s therapists began
receiving subpoenas in sexual violence cases for complainants’ therapy records. The intent in seeking
such records was very often to find a basis for claiming that the complainant was in some way
unreliable. This practice came to a head in 1995 in the case of R. v. O’Conner. O’Conner was charged
with sexual assault and the Supreme Court ruled (with a strong minority objection) that his access to a
complainant’s counselling record was part of his right to a fair trial and a full defence.
In response to this controversial Supreme Court decision the Federal Government passed Bill C-46 which
changed the Criminal Code to restrict a defendant’s access to a sexual assault complainant’s therapy
record. It places the obligation on the defendant to convince a judge in private that access to the record
is so relevant in a particular case that it warrants violating the complainant’s right to confidentiality.
In 1997 Bryan Joseph Mills (Alberta) was accused of sexually abusing a woman. In his defence, Mills
persuaded an Alberta judge to strike down Bill C-46 as unconstitutional. It was this decision which was at
issue in the R. v. Mills Supreme Court decision of 1999.
The Court upheld Bill C-46 and its more restrictive access to therapy records. Both the Canadian Mental
Health Association and the Canadian Psychiatric Association had intervener status before the Court.
While this decision is important, the arguments written by Justice Claire L’Heureux-Dubé are significant
both for the commitment to the right to privacy and for the deep understanding of the importance of
confidentiality within the therapeutic relationship. This commitment and understanding is clearly
demonstrated in the following lengthy excerpt from the Supreme Court judgment:
That privacy is essential to maintaining relationships of trust was stressed to this Court
by the eloquent submissions of many interveners in this case regarding counselling
records. The therapeutic relationship is one that is characterized by trust, an element of
which is confidentiality. Therefore, the protection of the complainant’s reasonable
expectation of privacy in her therapeutic records protects the therapeutic relationship.
Many interveners in this case pointed out that the therapeutic relationship has
important implications for the complainant’s psychological integrity. Counselling helps
an individual to recover from his or her trauma. Even the possibility that this
confidentiality may be breached affects the therapeutic relationship. Furthermore, it can
reduce the complainant’s willingness to report crime or deter him or her from
counselling altogether. In our view, such concerns indicate that the protection of the
therapeutic relationship protects the mental integrity of complainants and witnesses.
This court has on several occasions recognized that security of the person is violated by
state action interfering with an individual’s mental integrity.
In summary, the following broad considerations apply to the definition of the rights at
stake in this appeal. The right of the accused to make full answer and defence is a core
principle of fundamental justice, but it does not automatically entitle the accused to
gain access to information contained in the private records of complainants and
witnesses. Rather, the scope of the right to make full answer arid defence must be
determined in light of privacy and equality rights of complainants and witnesses. It is
clear that the right to full answer and defence is not engaged where the accused seeks
information that will only serve to distort the truth seeking purpose of a trial, and in
such a situation, privacy and equality rights are paramount. On the other hand, where
the information contained in a record directly bears on the right to make full answer and
defence, privacy rights must yield to the need to avoid convicting the innocent, Most
cases, however, will not be so clear, and in accessing applications for production, courts
must determine the weight to be granted to the interests protected by privacy and full
answer and defence in the particular circumstances of each case. Full answer and
defence will be more centrally implicated where the information contained in a record is
part of the case to meet or where its potential probative value is high. A complainant’s
privacy interest is very high where the confidential information contained in a record
concerns the complainant’s personal identity or where the confidentiality of the record is
vital to protect a therapeutic relationship.
Taken from R. v. Mills, SCC, 1999
(Access to this and other Supreme Court decisions is available at Website http
://www./exum.umontreal.ca/csc-scc/)
I call members attention to the following useful resources;
1. Julie Henkelman and Robin Everal, University of Alberta, just published a very helpful article in
the April issue of the Canadian Journal& of Counselling. The article is entitled “Informed Consent with
Children: Ethical and Practical Implications”
2. Dr. Allan Barsky, LL.B., M.S.W., Ph.D., has written a very useful book for all counsellors and
other mental health practitioners in Canada. It is entitled Counsellors as Witnesses and is a most
informative guide to the judicial and quasi-judicial processes in which counsellors may have to be
involved in their role as witnesses. It will help counsellors to be better prepared for these experiences by
making the legal system more understandable and by providing considerable direction as to how handle
assessments, record keeping, court disclosures and so forth.
Dr. Barsky has a background in law, social work, and mediation and is an Assistant Professor in
the Faculty of Social work at the University of Calgary. His book is available from Aurora Professional
Press, Aurora, Ontario.
I am delighted to welcome Dan and Lawrence as our first guests to the Notebook column. They are CCA
members who have thought a lot about the ethical challenges associated with counsellors’ use of the
internet in their professional work. I invite others to follow their lead and make their contribution to the
Notebook.
Glenn Sheppard
Ethics, E-mail, and the Counselling Profession
By Dan L. Mitchell and Lawrence J. Murphy
Using e-mail for communication with colleagues and other professionals is an everyday experience for
most counsellors. Communicating with clients via e-mail is less common. Nevertheless, many
counsellors do exchange e-mail correspondence with clients, even if it is to clarify a billing issue. In spite
of our daily use of e-mail, we may not be aware that there are several practical and ethical issues that
deserve close examination. Our intention, in this article, is to alert counsellors to potentially serious
problems and to consider the options available to prevent such problems.
“What if” Scenario
You were able to grab a bite to eat for lunch today. It’s Tuesday, 12:55 p.m. and you decide to check
your e-mail before your one o’clock counselling session.
You find three messages. One of them is from a sender you do not recognize. Your first instinct is that is
that it must be junk mail, but then you notice the subject line: “Please Help!”
Upon opening the message, your emotional alarm bells resound as you read these words:
“Hi I’m at the end of my rope. No one is helping. This time I’ll make sure it works…”
You know you need to take action, but what can you do? You look for a name, a phone number or any
identifying information. You check the e-mail address hoping for some kind of clue. It is no help at all:
[email protected].”
Fighting back the urge to panic, you print out a copy of the e-mail distress call and give it to your
secretary hoping he will know what to do. He does not. But he offers to call the police to see if they
might know how to trace the origins of the message.
“Good idea.” you say, as you try to pull yourself together to focus on your client who is now in your
waiting room…
Although this is a fictitious scenario, it could be real. The message could have been a disclosure of child
abuse. Or it could have revealed a possible intention to commit homicide. We need to assume that it is
only a matter of time until we receive an emergency e-mail message.
Practical and Ethical Concerns
Clearly there are many concerns of both a practical and an ethical nature. When counsellor e-mail
addresses are freely available, the following are some of the more serious challenges:
1. Client confidentiality
Most counselling agencies and clinical practitioners own regular e-mail addresses (i.e., not secure) and
make those addresses public, whether in advertising or on business cards and stationary. Once that
address is out there in the world, it is available for anyone to use who has internet access.
Regular email is not secure and does not protect client confidentiality. Although you may simply be
writing to acknowledge a new session date and time, the client may respond with highly confidential
information (e.g., “I’m actually glad I have another week to think about thing, I’ve remembered some
more details since we talked last week about…”)
2. Domain names
Many e-mail addresses owned and made public by counselling agencies and clinical practitioners contain
domain names that reveal their professional identity. (A domain name is the portion of an e-mail
address that follows the “@”) Publicizing such e-mail addresses does not protect client confidentiality.
For example, imagine a client, using her home computer that her children also use, who sends a regular
e-mail message to [email protected]. With default e-mail settings, computers store copies of all
outgoing messages. Unless she deletes her “Sent Items”, her children could easily discover that Mom is
seeking personal counselling.
3. Inability to act in an emergency
If clients or prospective clients convey emergency information using regular e-mail, counselling practices
and agencies may be powerless to take action, since regular e-mail may not contain enough information
to trace its geographic origin.
This is quite unlike the experience of someone telephoning into an agency and disclosing suicidal
thoughts. With the client on the telephone there is the opportunity to talk with him, perhaps to book an
appointment or to refer him to emergency assistance. In such a case, you at least know that the client
has received your communication. In an acute emergency, police can trace a telephone call, and
dispatch appropriate emergency assistance.
4. Liability Insurance
It is as yet unclear whether professional liability insurance will cover counselling professionals who have
not minimized the exposures (risks) noted above.
Possible Resolutions
We suggest that counselling agencies and clinical practitioners consider the following options:
1. Refrain from publishing regular e-mail addresses. This option, while ethically sound, may be
neither convenient for clients nor helpful for practitioners and agencies attempting to market
their services.
2. Publish regular e-mail addresses with a clearly visible warning that clients must waive their right
to confidentiality. This option gives clients an opportunity to choose whether they are willing to
waive their right to confidentiality.
While a warning informs clients of the confidentiality issue, it raises other important questions. If clients
wish to gain access to professional counsellors via e-mail, is it ethical to ask them to give up their right to
confidentiality to cover our inability to protect them? Would a “non-confidentiality” waiver stand up to
legal scrutiny?
In order to address the domain name issue (the 2nd ethical concern noted above), e-mail addresses that
are published should be either generic (e.g., [email protected], [email protected]) or in some other way
obscure any affiliation with the counselling profession (e.g., [email protected]).
A further necessity, if counsellors implement this second option is that the warning must also contain a
request that clients include basic contact information. This, then, would allow practitioners and agencies
to act on emergencies.
However this, too, is a weak solution because the warning and the request contradict each other. If
anything, the warning about the lack of confidentiality would influence clients to avoid discussing
private matters. We put them in a bind if they must include their private residential address or
telephone number in an insecure e-mail message.
3. Provide for clients secure e-mail with contact information collection capability. This option
resolves several issues, but special attention must be given to the following:
First, if counsellors must provide secure e-mail for their clients, does this mean that clients will be
required to download and install special software? If so, there is a risk that the process of downloading
and installing software may cause clients further distress. Ideally, whatever secure e-mail solution is
provided, the process for clients should minimize any technical demands or expertise. In addition,
telephone contact should be offered in case clients encounter technical difficulties.
Second, the domain name issue remains. Professionals should choose an e-mail security method whose
domain name obscures and affiliation with counselling.
Third, the process of providing clients with secure e-mail should be integrated with the collection of
their contact information. This minimizes the burden on clients to supply contact information in a
separate process. In addition, the process of collecting and storing contact information should be secure
(by housing the database on a secure server for example). Otherwise, again, confidentiality is
compromised.
Conclusion: Awareness and Appropriate Technology
The experience in most professions today is that the rapid pace of technological advances speeds ahead
of ethical considerations. The counselling profession is no exception. Ethical and practical issues that
pertain to the publication of regular e-mail addresses have not been widely recognized in the
counselling profession. Most ethical codes that specifically address the topic of internet communications
with clients stipulate the necessity of securing those communications so that the confidentiality of
information is assured. It is more than a hyperbole to suggest that the use of insecure e-mail by
counselling professionals may be the single most ubiquitous breach of counselling ethics in our
profession’s history.
Awareness is the first priority. In raising the issue, we want to encourage discussion and reflection. As
the profession takes a closer look at the use of e-mail, we hope that counsellors will be inspired to take
action to select and utilize appropriate security technology. Solutions do exist. The truth is that it would
not be too difficult for a knowledgeable hacker to monitor, steal, and publish a sensitive e-mail going
into or out of a counselling office. A former spouse, for example, could do a great deal of damage to
both their former partner and to the counselling profession as a whole with such a simple act. It is
incumbent on us to make sure that this kind of disaster simply cannot happen.
Dan L. Mitchell, CCC, and Lawrence J. Murphy are the founders of Therapy Online (www.therapyonline.ca), and online counselling service established in 1995. They have been pioneers in the
development of secure technological solutions for counsellors, pertinent ethical codes, and online
counselling skills.
E-mail: [email protected]
Phone: 1-88THERAPY-4 (1-888-437-2794)
Notebook on Ethics, Legal Issues, and Standards in Counselling
Parent denied access to counselling notes
As many of you know, the provincial Access to Information and Protection of Privacy Acts in Canada
make provision for unresolved disputes in matters covered under these acts to be adjudicated by a
commissioner. Such an adjudication, of particular interest to counsellors, took place in British Columbia
in August, 2000. It involved the Southeast Kootenay School District and a mother’s desire to gain access
to the counselling notes of the school counsellor who was seeing her two elementary school children
(Order number 00-40).
The parent’s request for access to the counselling notes occurred immediately following a visit she
received from Child Protection personnel. The mother argued that, as a parent, she had a right to know
what had transpired between the school counsellor and her children.
The initial response of the school district authorities that they could not grant the requested access
because they did not have custody of the counsellor’s notes was quickly dismissed. (Cognica readers are
referred to the Notebook, Winter, 2002, in which I report on a decision of the B.C. Privacy Commissioner
in 1996 in another dispute involving access to the notes of a school counsellor. In that case, the
Commissioner ruled that the school board, as the counsellor’s employer, had ultimate jurisdiction over
the notes. However, the decision in that case did not diminish the counsellor’s responsibility for
stewardship over her notes and for the maintenance of confidentiality. This decision was quickly invoked
in this instance).
Following this initial ruling, the school board authorities were ordered to provide the Commissioner with
the counselling record to assist in the determination as to whether or not the mother’s disclosure
request could be granted. Following his review he concluded that the mother would not be allowed to
have access to the counselling notes. In reaching this decision the Privacy Commissioner concluded that
the notes contained personal information given to the counsellor by the children with an expectation
that it was given in confidence, and that with disclosure there was a reasonable possibility that the
mental or physical health of the children would be at risk. Therefore, he decided, that in this case, the
children’s right to privacy would be unreasonably violated if the mother’s demand was granted.
The B.C. Freedom of Information and Protection of Privacy Act, like most other such acts in Canada,
outlines the conditions under which a public body, such as school board, could and should refuse a
request for disclosure of personal information. It states as follows:
19 (1)
The head of a public body may refuse to disclose
to an applicant information, including personal
information about the applicant, if disclosure
could reasonably be expected to
a) threaten anyone else’s safety or mental or physical health, or
b) interfere with public safety
22(l)
The head of a public body must refuse to disclose
personal information to an applicant if the disclosure
would be an unreasonable invasion of a third party’s
personal privacy
In his ruling, the Commissioner provided sonic guidelines that will assist school boards and others to
exercise their responsibility when making such challenging decisions. They were:
There must be a careful distinction between the right of a parent to access information on
‘behalf of a child’ and a parent’s desire to access their child’s record at arms-length from the
interests of the child.
Despite the decision in this case, school counselors’ counselling notes are not, as a class of
records, exempt from disclosure under the Act.
Counselling notes, as in this case, can contain personal information as defined under the Act,
and disclosure would invade children’s right to personal privacy.
Children, as in this case, can have a reasonable expectation of confidentiality when they share
personal information with their school counsellor.
A parent’s ‘right to know’ must be balanced against the reasonable expectations of the benefits
and risks when there is request to invade their children’s privacy.
This decision of the B.C. Privacy Commissioner is consistent with the Access to Records provisions found
on pages 15-16 of the CCA Standards of Practice for Counselors. Members are strongly encouraged to
become familiar with them, including with the following:
School counsellors should make every effort to ensure that there is
a school-based procedure in place to adjudicate any requests from
parents or guardians for access to counselling records(p. 16).
As a matter of fact, a number of privacy commissioners in their adjudication decisions have directed
school board authorities to have specific provisions in place in anticipation of disclosure request under
the access to information and protection of privacy acts within their respective provinces.
Notebook on Ethics, Legal Issues and Standards for Counsellors
Personal information Protection and Electronics Documents Act (PIPEDA)
What is PIPEDA?
Federal legislation entitled, Personal Information Protection and Electronics Documents Act (PIPEDA),
came into full effect on January 1, 2004. It was implemented in two stages. In 2011 it took effect for
federally regulated organizations, but it now applies to all federal government departments and
agencies and to all commercial activity in Canada. This Act is administered by the federal Privacy
Commissioner, who has the authority to make public statements on violations of the Act and/or refer
serious cases to Federal Court. Virtually all provinces in Canada have some type of privacy protection
and right to information legislation. The federal Privacy Commissioner may exempt organizations and
activities in those provinces if their privacy laws are substantially similar to the PIPEDA. So, even if a
province is exempted obligations similar to those outlined here would still apply but under provincial
legislation.
What does PIPEDA Say?
It “sets out the ground rules for the collection, use and disclosure of personal information in the course
of commercial activities...(and) balances an individual’s right to privacy with an organization’s needs for
personal information for legitimate business purposes.”
“Organizations covered by the Act must obtain an individual’s consent when they collect, use or disclose
the individual’s personal information. The individual has a right to access personal information held by
an organization and to challenge its accuracy, if need be. Personal information can only be used for the
purposes for which it was collected. If an organization is going to use it for another purpose, consent
must be obtained again.”
“Individuals should also be assured that their information will be protected by specific safeguards,
including measures such as locked cabinets, computer passwords or encryption.”
The types of personal information covered by the new rules include:
• age, name, ID numbers, income, ethnic origin or blood type;
• opinions, evaluations, comments, social status or disciplinary actions;
• employee files, credit records, loan records, medical records, existence of a dispute between a
consumer and a merchant, intentions (for example, to acquire goods or services, or to change
jobs.)
Source: Privacy Commissioner of Canada, http://www.privcom.gc.ca
How Does PIPEDA Apply to Counsellors?
The legislation applies to all counsellors working in private practice. This is so because it applies to all
commercial activity but not to activities in the public domain. For example, it does not apply to public
educational institutions, hospitals, local governments and so forth.
What Must Counsellors in Private Practice Do to Comply with PIPEDA?
Fortunately, the standards set by our CCA Ethical Code and Standards of Practice are equal to and, in
most areas, higher than those expected by PIPEDA, For example, the principles of informed consent and
confidentiality are central to our professional conduct. So, counsellors should have no difficulty
achieving compliance with this Act. However, all private practitioners should review their practices to
ensure that they do so by being familiar with the requirements as stated here and more fully on the
website provided in this Notebook. Clients have a right to know what private information is being
collected and why, how it will be used, to give consent to its use and transmission, to correct
information in their file, to have their questions answered, and to know who to contact if they have a
related compliant.
If private practitioners have receptionists, business managers, and so forth, they must act to ensure that
these same privacy rights are extended to their employees with respect to their personal information.
When counsellors are employed by private agencies or organizations they should also follow the PIPEDA
policies and procedures that such employers are required to establish.
Two Problem Areas with PIPEDA
There are two problem areas for counsellors (private practitioners) if they are expected to achieve full
compliance with PIPEDA.
Firstly, although PIPEDA states that service providers do not have to disclose personal information that
could endanger a third party, it does not extend such an exemption to the disclosure of information in a
counselling file that may be harmful to a client. Rather, it requires full disclosure of client personal
information. As members know, under our Ethical Code we have an obligation to protect clients from
disclosure of personal information that is likely to cause them harm, such as, information that is likely to
promp them to engage in self-destructive or self-injurious behavior.
Secondly, it appears that under PIPEDA counsellors(private practitioners) could be expected to disclose
to clients information about psychological tests they may have taken, such as scoring keys and the like,
disclosure of which could violate the integrity of such psychometric instruments and compromise fair
trade practices for companies that produce and sell psychological tests. Such disclosure would be
inconsistent with our practice standards and with Canadian case law (see Notebook, Cognica, volume
33, No. 1 for a case law example).
I suspect that these are unforseen difficulties with this legislation. CCA will be writing to the Canadian
Privacy Commissioner to inform him of the need to address those problematic provisions. In the
meantime, we are advising you to be in touch with our CCA Ethics Committee should you encounter a
request to comply with a client request in either of these problematic areas.
Dr Glenn Sheppard, CCC
I am delighted to welcome Cameron Symons to the Notebook. Cameron presented an informative and
interactive session on counsellor recording keeping at CCA Conference 2004 in Winnipeg. He generously
accepted my invitation to transform his presentation on this important topic into an article for this
edition of the Notebook, Cameron is a former school counsellor currently teaching in the Faculty of
education at Brandon University. As always, I invite you to follow his example and consider making your
contribution to the Notebook
Record Keeping: Ideas for Counsellors
By Cameron Symons
Counsellors’ record keeping practices are increasingly governed by legislation. In some provinces, new
Freedom of Information and Protection of Privacy legislation and Personal Health Information acts have
given counsellors new guidelines about the way they keep records. The federal Youth Criminal Justice
Act will also influence counsellors’ practices on record keeping. For school counsellors, legislation
regarding the administration of public schools adds other imperatives. Some provinces have synthesized
these various legislative requirements into policy statements that provide counsellors with a guide for
the management of their counselling records.
In schools, pupil records are typically held in three areas: the cumulative file in the main office; the
young offender file if one exists, held in a secure location by the principal; and the counselling or special
education files normally maintained by the counsellor and resource teacher.
The cumulative file component includes things such as identification information, parent/guardian
information, citizenship, school history, relevant health information, academic information on marks,
attendance, awards, and correspondence & legal documents. Some counselling information, such as
results of psychoeducational assessments that may inform programming decisions can also be included
in this file.
The counselling and special education files typically include additional information such as: special
education or resource information; counselling information; clinician reports, and meeting notes;
referrals to other agencies; diagnostic testing results; and reports from service providers outside of the
school such as hospitals and treatment facilities.
The Youth Criminal Justice Act component contains information about a young offender that may be
used: to ensure compliance with a court order; to ensure the safety of staff, students and others; and to
assist in the rehabilitation of the young offender.
Most legislation is in agreement that there are certain conditions under which a person may be refused
access to information in a file. They are: if disclosure might cause an invasion of the privacy of a third
party; if disclosure could be detrimental to the education of the pupil; if disclosure could cause physical
or emotional harm to someone; or if disclosure could interfere with an enactment or investigation.
Personal Health Information legislation, (Manitoba’s for example), adds additional conditions under
which access may be refused. These include: if disclosure may endanger the mental or physical health or
safety of a person; if disclosure may reveal information about another person who has not consented to
disclosure; if disclosure could identify a third party who supplied the info in confidence under
circumstances where confidence could be expected; or if the information was compiled for legal
purposes.
The Youth Criminal Justice Act demands that the offender’s file must be kept separate from any other
record of the young person; that no other person has access to the information except if authorized
under the Act; and that the record be destroyed when the information is no longer required for the
purpose for which it was disclosed.
In cases of divorced or separated parents, the Divorce Act of Canada states that “Unless the court orders
otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and
to be given information as to the health, education and welfare of the child.” Provincial family law
usually supports this notion as in Manitoba’s legislation, for example, which states: “Unless a court
otherwise orders, the non-custodial parent retains the same right as the parent granted custody to
receive school, medical, psychological, dental and other reports affecting the child”. (Family
Maintenance Act Manitoba)
While the legislation described above is very similar from province to province, it is important to check
on the specific wording of these kinds of acts in your own jurisdiction.
Counsellors are often concerned about transferring information when a student transfers to a new
school. Generally, both the cumulative file, and the counselling or special education file must go to the
new school. A strategy that will help give counsellors some sense of security is to retain the counselling
records themselves, and place a notice in the cumulative file to the effect that counselling information
exists on this student and may be obtained by contacting the counsellor directly. In this way, the records
can go from professional to professional, and their security and privacy be ensured. Many schools have
the parents or students, (if they are the age of majority), sign a release form to allow the transfer of
these records.
Lawyer, Robert Solomon, and Consultant, Dennis Lucas have each offered suggestions about effective
record keeping. These ideas include:
• Keeping all entries in chronological order;
• Recording information while it’s fresh;
• Making any alterations with a straight line, dated and initialled;
• Sticking to behaviours and concise description;
• Staying away from diagnosis & interpretation;
• Limiting records only to directly relevant info;
• Including record keeping information in your informed consent form,
• Record ingredients may include:
• Name and date:
• Presenting issue:
• Past history of issue (if not described in an earlier record);
• Current status of issue changes since last visit;
• Treatment/goals/homework/actions;
• Check-back date/time;
• Referral info: To whom, where, when, what was said;
• Administrative info: timetable, credits, etc.
To ensure the protection of your students and yourself, it is important to check your employer’s policies
on access to information, the CCA Standards of Practice on record keeping, and the privacy legislation in
your province. If no workplace policy exists, it is critical that such a policy on record keeping be created.
In some provinces, requests for information can be referred to the individual appointed as Privacy and
Access Coordinator for your school hoard. This individual can, with input from you, decide to release the
whole record, release parts of it, or deny access altogether. Parents then have the right of appeal to a
provincial privacy adjudicator such as the provincial ombudsman In provinces where these procedures
are not mandated, it is important to follow the CCA policy that school counsellors should make every
effort to ensure that there is a school-based procedure in place to adjudicate any requests from parents
or guardians for access to counselling records.
As a proactive step to avoid misunderstanding with students and parents, it is essential to have a good
informed consent form in place. A consent form used in a school setting may say something like this:
“In all discussions between us you have a right to expect that anything we talk about will remain
confidential. We will respect and guard your right to confidentially very carefully, but you need to know
that there are a few cases where that may not apply. These are the situations where information may be
shared with someone else:
I)
have;
2)
3)
4)
5)
you.
if you ask me to speak with someone else for you or give them information you wish them to
If I feel that you or someone else may be in danger or in need of protection,
If a court orders the release of information,
If required by law, as in cases of child abuse.
To consult with another professional person in confidence to try to find solutions or answers for
These situations are very rare, but it is important for you to know about them.”
Reflections on Ethics Education in Counsellor Education Programs
I recently prepared and conducted a day long seminar entitled, Pedagogical Perspectives on the
Teaching of Ethics Courses. So, in this Notebook, I have decided to share a few reflections on this
important aspect of counsellor education.
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A commitment to ethics education is foundational to any graduate program in counselling.
Ethics education rather than being just an obligatory programmatic add-on can be both
intellectually and personally challenging and satisfying, and, to my surprise, it can serve a truly
integrative function within counsellor preparation since it can touch every aspect of counselling
practice.
One of the primary goals of ethics education in counsellor education is help students develop
the ego strength to take ethical action, as well as, to tolerate the ambiguity inherent in most
ethically laden circumstances.
Young professionals are more likely to develop an ethically responsible approach to counselling
practice in an environment where counsellor educators value and model ethical behaviour and
are open about their ethical challenges and their tolerance for ambiguity so typically associated
with such challenges.
Ethics education is not only about teaching a body of knowledge, it is also concerned with
decision-making, problem solving, and critical thinking.
Counsellors educators who teach ethics course have available a variety of conceptual models of
the process of ethical decision making, including, those that see it as: a cognitive, problemsolving process, a moral reasoning process, a process that is multi-dimensional requiring the
integration of a number of psychological processes.
Although our Code of Ethics and Standards of Practice are necessary and helpful, they cannot
anticipate the appropriate response to every ethical challenge. Therefore, it is essential that
ethics education prepare students to recognize ethical dilemmas and to think through the most
appropriate course of action. Fortunately, we have available a number of models of ethical
decision-making to assist with this process. (Capuzzi and Gross, 1999, Cottone and Tarvydas,
1998, Kitchener, 1986, Rest, 1984, Schulz, 2000)
Ethics course should contain both didactic and experiential components. An experiential
curriculum is essential to the development of ethical decision making capability. In fact,
Handelsman (1986) views it as a skill that can and should be developed. Gawthrop and
Uhlemann (1992) found that just a 3-hour experiential workshop had significant positive effect
on a group of undergraduate students’ ethical decision making when dealing with role play
scenarios.
Historically our approach to ethics education has been to see it as occurring across the
counsellor education curriculum, what is sometimes called an infused approach that takes
advantage of teachable opportunities, particularly those that occur during supervised practice
components. Although this infused approach continues to be essential it may not be sufficient
for a number of reasons: there is now a significant body of knowledge to be learned, higher
consumer expectations for counsellor ethical sophistication, time constraints during supervision,
and maybe a limited range of ethical issues are present during practica and other supervised
experiences.
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As most members know, our CCA Accreditation Standards require a stand alone course in
counsellor education programs, however, our Certification requirements do not. I know that our
Certification Committee is currently wrestling with their review of this aspect of our certification
standards. The CCA Board has taken the position that should a change occur requiring an ethics
course for certification there would have to be a lengthily transitional period that would allow
the continued certifying of graduates from programs with only the infused approach to ethics
education until the necessary adjustments are made.
Ethics education curriculum should include the following: CCA Code of Ethics, CCA Standards of
Practice and Casebook. All counsellors of should have some familiarity with such statutory laws
as, child protection, privacy and freedom of information, youth justice act, mental heath act,
divorce and matrimonial act, as well as selected examples from case law. All CCA counsellors
should be familiar with the CCA Ethical Complaints and Disciplinary Procedures.
Ethics education in counselling is a rich environment for the generation of a great deal of
research activity for both faculty and students. For example, we need to have a fuller
understanding of the ethical challenges confronting our members in a variety of work places,
schools, private practice, counsellor education. Tracey Nigro (2001) has set a fine scholarly
example with her master’s thesis dealing with the attitude towards and experiences with duality
by our CCA members in British Columbia. There is a need for basic research to shine more light
on the nature of ethical decision making and the psychological processes involved.
It is only through the development of appropriate ethics education with a shared curriculum and
instructional goals can we honour our social commitment to self regulation and public
protection.
Note: the references for this Notebook are available on request.
Glenn Sheppard Ed.D., CCC
Scope of Practice for Counsellors
For this Notebook I thought that it might be useful to continue with the regulatory theme from the last
issue. You will remember that I presented a number of definitions of professional counselling. I hope
that you found them interesting and engaging. With activity in a number of provinces taking us towards
the possibility of the statutory regulation of counselling we need to be developing an inventory of
practices that might serve to inform any such statutes. For example, what is our preferred title for
counsellors in a regulated profession? Should it be licensed professional counsellor (LPC), registered
professional counsellor (RPC), certified professional counsellor (CPC), or maybe the title currently being
proposed by the BC Task Group on regulation, licensed or registered counselling therapist? Also, any
statute will need to include a Scope of Practice provision that sets out the scope of professional
activities permitted under the legislation. Since virtually all the states in the United States have
professional counsellors regulated by legislative statute I thought that it might be useful to sample a few
of the scope of practice statements found in their statutes or in the administrative rules established
under the authority of their acts.
I have the generous permission of the American Counseling Association (ACA) to share with you the
following examples taken from a 1997 ACA publication entitled: Licensing Requirements: Counselors,
Marriage and Family Therapists, Psychiatirc Nurses, Psychologists, and Social Workers, 2nd Edition.
Arkansas:
“Practice of counseling shall mean... any service involving the application of principles, methods,
or procedures of the counseling profession which include, but are not restricted to: (1)
Counseling which means... assisting... to develop understandings of personal problems to define
goals, and to plan action reflecting his or her interests, abilities, aptitudes, and needs as these
are related to personal-social concerns, educational progress, and occupations and careers; (2)
Appraisal... selecting, administering, scoring, and interpreting instruments designed to assess an
individual’s aptitudes, attitudes, abilities, achievements, interests, and personal characteristics,
but shall not include the use of projective techniques in the assessment of personality; (3)
Consulting... (4) Referral... (5) Research...” See 17-27-102 (5) for complete citation.
Florida:
“The practice of mental health counseling is the use of scientific and applied behavioral science
theories, methods, and techniques for the purpose of describing, preventing, and treating
undesired behavior and enhancing mental health and human development. Such practice
includes the use of methods of a psychological nature to evaluate, assess, diagnose, and treat
emotional and mental dysfunctions or disorders, whether cognitive, affective or behavioral;
behavioural disorders; interpersonal relationships; sexual dysfunction; alcoholism: and
substance abuse... may include clinical research. Mental health counseling treatment includes,
but is not limited to counseling, psychotherapy, behavior modification, hypnotherapy, sex
therapy, consultation, client advocacy, crisis intervention, providing needed information and
education to clients... The terms “diagnose” and “treat” as used in this chapter, when
considered in isolation or in conjunction with any provision of the rules of the board, shall not
be construed to permit the performance of any act which mental health counselors are not
educated and trained to perform..” See Chapter 491.003 (9) for complete citation.
Kansas:
‘“Professional counseling’ means to assist an individual or group to develop understanding of
personal strengths and weaknesses, to restructure concepts and feelings, to define goals and to
plan actions as these are related to personal, social, educational and career development and
adjustment. ‘Assessment’ means selecting, administering, scoring and interpreting instruments
designed to describe an individual’s aptitudes, abilities, achievements, interests and personal
characteristics. ‘Consultation’ means the application of principles, methods and techniques of
the practice of counseling to assist in solving current or potential problems of individuals or
groups in relation to a third party. ‘Referral’ means the evaluation of information to identify
problems and to determine the advisability of referral to other practitioners.” K.S.A. 65-5802 (c)
(d) (e) (f)
Michigan:
“Practice of counseling or counseling means... the application of clinical counseling principles,
methods, or procedures for the purpose of achieving social, personal, career, and emotional
development and with the goal of promoting and enhancing healthy self actualizing and
satisfying lifestyles whether the services are rendered in an educational, business, health,
private practice, or human services setting. The counseling techniques, or behavior modification
techniques for which the licensed professional counselor or limited licensed counselor has been
specifically trained...” “Counseling principles, methods, or procedures means a developmental
approach that systematically assists an individual through the application of any of the following
procedures: (i) evaluation and appraisal techniques. As used in this subparagraph, “appraisal
techniques” means selecting, administering, scoring, and interpreting instruments and
procedures designed to assess an individual’s aptitudes, interests, attitudes, abilities,
achievements, and personal characteristics for developmental purposes and not for
psychodiagnostic purposes, (ii) exploring alternative solutions, (iii) developing and providing a
counseling plan for mental and emotional development, (iv) guidance, (v) psychoeducational
consulting, (vi) learning theory, (vii) individual and group techniques emphasizing prevention,
(viii) counseling techniques, (ix) behavioral modification techniques, (x) referral...” See
M.C.L.A.333.18101 (a) (d) for complete citations.
North Carolina:
“The ‘practice of counseling’ means holding oneself out to the public as a professional counselor
offering counseling services that include, but are not limited to, the following: (a) Counseling Assisting individuals, groups, and families through the counseling relationship, using a
combination of clinical mental health and human development principles, methods, diagnostic
procedures, treatment plans, and other psychotherapeutic techniques, to develop an
understanding of personal problems, to define goals, and to plan action reflecting the client’s
interests, abilities, aptitudes, and mental health needs as these are related to personaI-socialemotional concerns, educational progress, and occupations and careers, (b) Appraisal Activities Administering and interpreting tests for assessment of personal characteristics, (c) Consulting Interpreting scientific data and providing guidance and personnel services to individuals, groups,
or organizations, (d) Referral Activities - Identifying problems requiring referral to other
specialists, (e) Research Activities - Designing, conducting, and interpreting research with human
subjects.” 90-330 (3)
South Carolina:
“...The procedures of counseling include, but are not limited to, the following; (A) ‘counseling’,
which means assisting children, adolescents, and adults, either individually, in groups, or in
organizations, through the counseling and psychotherapeutic relationship to develop an
understanding of and to explore possible solutions to interpersonal and personal problems and
conflicts, to define goals, to make decisions, and to plan a course of action reflecting an
individual’s or a group’s Interests, abilities, and mental and emotional needs which include, but
are not limited to personal- social concerns, psychotherapeutic progress, sexual adjustment,
developmental difficulties, educational achievement, and occupational and career development.
(B) ‘appraisal’, which means selecting, administering, scoring, and interpreting instruments
designed to assess an individual’s aptitudes, abilities, achievements, interests, and personal
characteristics, and the use of nonstandardized methods and techniques for understanding
human behavior in relationship to coping with, adapting to, or changing life situations. (C)
‘consulting’, which means conferring with other professional colleagues, groups, or
organizations for the purpose of assisting them in their work with persons who are experiencing
personal problems. (D) ‘referral’, which means the evaluation of data to identify problems and
to determine the advisability of referral to other specialists.” 40-75-80
Wyoming:
“‘Practice of counseling’ means... a service that integrates a wellness, pathology and
multicultural model of human behavior, This model applies a combination of mental health,
psychotherapeutic, and human development principles and procedures to help clients achieve
effective mental, emotional, physical, social, moral, educational, spiritual or career development
and adjustment throughout the life span, and includes the diagnostic description and treatment
of mental disorders or disabilities within the range of the professional’s preparation.
‘Psychotherapy’ means the treatment, diagnosis, testing, assessment or counseling in a
professional relationship to assist individuals or groups to alleviate mental disorders, understand
unconscious or conscious motivation, resolve emotional relationships or attitudinal conflicts, or
modify behaviors which interfere with effective emotional, social or intellectual functioning.”
WS 33-38-102 (vi) (viii)
Notebook on Ethics, Legal Issues, and Standards in Counselling
Glenn Sheppard, Ed.D, CCC
Sexual Abuse of Clients: A Continuing Concern in the Helping Professions
I recently received two major reports on the sexual abuse of clients by their professional helpers. The
first is entitled Professional Therapy Never Includes Sex published by the Department of Consumer
Affairs, State of California, The other is a Canadian report entitled “What about accountability to the
patient?” A Final Report of the Special Task Force on the Sexual Abuse of Patients. As part of the
mandatory five year review of the Ontario Regulated Health Professions Act (RHPA) in 2000, the Ontario
Health Professions Regulatory Advisory Council (HPRAC) established an independent task group to
examine a number of important issues with respect to the sexual abuse of patients by individuals to
whom they have gone for professional help.
This report is the Task Group’s final submission to the Ontario Minister of Health and the HPRAC. It
contains poignant comments from some of the 57 victims who made representation to the Group and
34 recommendations on steps that could be taken to stop the sexual abuse of clients. The Task Group
was chaired by Marilou McPhedan.
A Clear and Unequivocal Judgment.
This report to the HPRAC contains a lengthly quote from a 1998 judgment issued by Justice J. Aitken of
the Ontario Court of Justice, General Division, in the case of the sexual abuse of a client by her
psychologist. I have decided to include it in this Notebook because it is such a crisp and unequivocal
judgment on one of the most destructive violations of fiduciary relationships;
“She went to him for help at a time when she was particularly vulnerable and insecure. He had the
professional knowledge to help her, but instead used that knowledge to manipulate the situation to his
own advantage, playing on [her] lack of confidence, her search for a positive father figure and her sexual
inhibitions. In these circumstances, as has been attested by Dr. Jackson and Dr. Freebusy, [the patient]
could not exercise free will. Her participation in sexual activities with Dr. B. [a psychologist] was not
based on any understanding on her part as to what was really happening. He kept her in a constant state
of confusion as to whether his advances were part of her treatment, evidence of his love for her, or
something else. This was coupled with her ovetwhelming dependency on him, which he let develop
unchecked, so that she was rendered incapable of coming to her own assessments or conclusions. There
could be no genuine consent in these circumstances. Therefore even/thing from the initial touching to
the hugging, kissing, fondling, masturbating and finally intercourse were all forms of battery.
I agree with McLachlin J. that ‘... where such a power imbalance exists it matters not what the patient
may have done, how seductively she may have dressed, how compliant she may have appeared, or how
self interested her conduct may have been the doctor will be at fault if sexual exploitation occurs.’
(Norberg v. Wynrib (1992), 92
D.L.R. (4th) 449 (S.C.C.) p. 497)
Exploitation did occur in this case, and the sole responsibility for that rests with Dr. B. There can be no
doubt that (the therapist] owed fiduciary obligations to [the patient] when he took her on as a client
within his clinical psychology practice. It is also equally clear that he breached those obligations by
totally ignoring what were appropriate therapist-client boundaries and particularly by initiating and
maintaining a sexual relationship with her. The obligation was on him and him alone to ensure the
appropriate boundaries were maintained. By breaching them, he put his own needs ahead of those of
[his patient]. He did not do this on just one occasion. He did it repeatedly form August 1990 to August
1995, and arguably beyond.”
The court in this case awarded the plaintiff damages in the amount of $326, 275.98.
CCA members are invited to become familiar with the section entitled ‘Sexual Intimacies with Clients’ in
our Standards of Practice for Counsellors and with the chapter on boundary violations on our Ethics
Casebook.
Comments on this issue of the Notebook are invited and we continue to welcome contributions to this
feature of our newsletter.
Notebook on Ethics, Legal Issues and Standards in Counselling
Special Education and the Charter: No Presumption in Favour of Integration
In this Notebook I have decided to review a landmark decision of the Supreme Court of Canada that will
be of interest to all our members, but it has particular implications for those CCA members who work in
public schools and more especially for those who participate with colleagues in making programming
and placement decisions for students with special needs.
As you know, our society like many others continues to strive towards providing the most appropriate
educational environment to meet the many diverse needs of students with special needs. Over the past
several decades various ideological labels have emerged that capture these educational strivings:
integration, mainstreaming, normalization, least restrictive environment, and more recently the
ideology of inclusion.
There are those who take the view that all children with special needs are entitled to be educated within
the regular classroom with their disabled peers regardless of the degree of disability or the extent of
their special needs. Some such advocates take the view that the Canadian Charter of Rights and
Freedoms guarantees this right. Well, the Supreme Court of Canada in the case of Eaton v. Brant County
Board of Education (February. 1997) has decided otherwise. It unanimously ruled, in the case of 12 year
old Emily Eaton, that the Charter provides for no such guarantee since there is no presumption under
the charter in favour of integration. Rather, the justices concluded that the Charter protects the best
interest of the child and that this 'best interest’ and the child’s special needs may mean, as they
concluded in Emily’s case, that a best placement is other than in the regular classroom.
At the time of this decision Emily was a 12 year old student in Burford County. Ontario. She has cerebral
palsy and according to the Court decision, "...is unable to communicate through speech, sign language
or other alternative communication system, has some visual impairment and who is mobility impaired
and mainly uses a wheelchair”. After several years of working to meet her special needs in regular class,
including the provision of a fulltime student assistant, it was decided that her needs could best be met
by placement in a special education classroom. This decision was appealed by her parent’s but it was
upheld by a Special Education Appeal Board, the Ontario Special Education Tribunal, and by Divisional
Court. It was overturned by the Ontario Court of Appeal. It was this later decision that was appealed by
the Brant County Board of Education to the Supreme Court of Canada. The Court concluded that a
placement decision is not discriminatory nor does it violate a child's equality rights if the decision
makers
1. determine the best possible placement for the child
2. take into account the child’s best interest and special needs when doing so
3. provide for ongoing assessment of the child’s needs and make changes accordingly
4. determine placement of an,“...exceptional child from a subjective, child-centred perspective-one which attempts to make equality meaningful from the child’s point of view as opposed to
that of the adults in his or her life."
It concluded that the educational authorities had met all these conditions in Emily’s case and, therefore,
it upheld the placement decision. It further argued that any attempt to provide an alternative
curriculum for Emily while in regular class would be inappropriate since it would only serve to isolate her
more. In other words, placement of an exceptional child in regular class can for some children, in the
view of the Court, be a most restrictive placement rather than a least restrictive one. The Court
supported the view expressed by the Special Education Tribunal when it heard the Eaton’s appeal. It
concluded that the provision of a parallel curriculum for exceptional children when in regular class can
be beneficial only when it is realistically parallel but may very well have the effect of isolating the child
when it is not so.
This landmark decision still stands to provide some guidance to those charged with the challenging task
of providing for the special educational needs of exceptional children. Since 1997 it has been used as a
benchmark in a number of subsequent judicial challenges to placement decisions. For example, in the
case of Pokonzie v. Sudbury District Roman Catholic Separate School Board (O.J. No. 4698) the court
upheld a previous decision of the Special Education Tribunal in its support of a special education
placement for a boy with developmental disabilities. It also noted that his parents who were appealing
the placement decision had an “unrelenting commitment to full classroom integration” without regard
for “his cognitive skills, his abilities or his behaviours.” In other words, in the view of the court a parent’s
view of their child’s best interest may not always be determinative of the best educational placement.
Eaton v. Brant County Board of Education (February 7, 1997) No. 24668. S.C C.
P.S. I have found the Education Law Reporter for Elementary and Secondary Schools invaluable in my
professional work. It is has been published by a private company since 1989 and is available, by
subscription, ten times per year. The authors report on the most recent legal issues in education in
Canada including a review of all case law in education as such decisions are rendered by the courts. They
write their reviews in a clear and user friendly style and draw our attention to implications and
applications. School counsellors and school psychologists will find many court decisions reviewed in the
Education Law Reporter have immediate and significant application to their work. The Supreme Court
decision that I have reviewed in this Notebook, for example, I first became aware of by reading about it
in this publication. You can learn more about this useful resource by visiting their web site at
http://wviw.edlawcanada.com
Valuing Diversity and Acting Ethically: The Practitioner’s Dilemma
Submitted by Gail Beniek, M.Phil, M.Ed., CCC - Professor, Sheridan College
As the Canadian population becomes increasingly diverse, counsellors can anticipate working with more
clients who bring with them values, beliefs and behaviours that are culturally different from the western
principles on which the CCA Code of Ethics is based. The CCA Code of Ethics does contain specific articles
(A9, B8 and D10) mandating counsellors to practice in a culturally sensitive manner. Yet, in some cases
sensitivity to the client’s cultural norms and maintenance of professional standards of practice may pose
an ethical dilemma for the practitioner.
Scenario
The following case illustrates how a counsellor may be caught in a conflict between professional ethical
standards and the cultural norms of the client.
You are a counsellor working at an educational institution. A Vietnamese student, Tu Li, is assigned to
you because of academic difficulties. You note that the student is a reluctant speaker and is slow in his
conversational style.
In attempting to establish a positive relationship with Tu Li, you lean toward him, look him straight in
the eyes and ask him directly to tell you about the difficulties he is having in his academic work. When
the student looks away and does not respond, you suggest that he has a language problem and that a
class in English as a second language might help him to communicate more effectively.
In the course of your counselling sessions, Tu Li says that he is feeling mounting pressure from his father
to major in the sciences in order to pursue a career in medicine. Tu Li feels he is not suited for medicine
and is keen to study interior design. Besides, he is getting “B” and “C” grades in his biology course, which
he fears will bring embarrassment and shame to his family.
You notice that the student is becoming increasingly despondent because of his perceived academic
failures. You encourage Tu Li to follow his passion and pursue the career path of his choice.
Cultural Encapsulation
It is not difficult to discern that the above scenario is riddled with examples of cultural encapsulation or
ethnocentric bias on the part of the counsellor. The attending skills which the counsellor uses to build a
therapeutic alliance may be inappropriate with a client from a culture in which directness is regarded as
a lack of respect. The counsellor’s assumption that a hesitant manner of speaking is symptomatic of an
English language deficiency reflects a disregard for cultural variation in communication patterns. The
counseIlor’s encouragement of the client to be self determining in his career choice demonstrates a
misunderstanding of cultural norms regarding filial piety, family obedience and collectivist decision
making.
Risks of Cultural Encapsulation
The risks associated with the type of cultural encapsulation exhibited by the counsellor in the above
scenario are well worth considering because they raise legal, ethical and practice based concerns.
First, by failing to integrating a respect for diversity into their practices, counsellors may infringe on the
client’s basic human rights. From a legal perspective, counselling practices which are culturally
encapsulated may be construed as a form of systemic discrimination against clients that are not from
the dominant groups in our society. Cultural encapsulation has a disproportionately adverse impact on
clients from non-western cultures and has the negative effect of excluding them from the benefits of
counselling services. Under the Canadian and provincial human rights codes systemic discrimination is
prohibited an numerous grounds including race, ethnicity, nationality and country of origin. To practice
counselling in a culturally encapsulated manner may thus constitute a human rights violation.
Secondly, a counsellor’s failure to demonstrate respect for diversity may infringe on the client’s cultural
autonomy and thereby constitute an unethical practice under the CCA Code of Ethics. Counsellors who
hold stereotypical beliefs about racial and ethnic minority clients or who practice without an awareness
of the unique cultural realities of their clients may cause harm to these clients. The failure to
demonstrate sensitivity to the culture of clients may violate several of the fundamental ethical principles
of the profession, such as respect for the dignity of persons, not harming others and responsible caring.
Thirdly, failure to understand the culture differences of clients may reduce the chance of establishing an
effective therapeutic relationship or lead to a rupture in the therapeutic alliance between practitioner
and client. In acquiring sensitivity to cultural variation, counsellors reduce the probability of
miscommunication with the client, misdiagnosis and misinterpretation of client behaviour.
The Culturally Skilled Counsellor
One way to minimize the risks of cultural encapsulation is for counsellors to ensure that their
counselling practices are compatible with the cultural differences of their clients. Many professionals in
the field regard the development of multicultural competencies as the best route to practitioner/client
compatibility in a diverse society.
Multicultural competencies can be defined as a set of knowledge, skills and attitudes which increase
counsellor awareness of a) their own values and biases; b) the worldview of the client; and c) culturally
appropriate intervention strategies.
Just as important as these competencies is the counsellor’s ongoing surveillance of the cultural biases
inherent in the way counselling is practiced. The counsellor’s willingness to modify theories and
techniques to meet the client’s cultural needs will help the profession of counselling remain both
effective and ethical.
The following are helpful resources:
Corey, G., Corey, M. And Callanan, P. (1998). Issues and Ethics in Helping Professions. Pacific Grove, CA:
Brooks/Cole Publishing Company.
Das, A.K. (1995). Rethinking multicultural counselling: Implications for counsellor education. Journal of
Counseling and Development. 74(1), 45-52.
Pedersen, P. (1994). A Handbook for Developing Multicultural Awareness. (2nd ed.). Alexandria, VA:
American Counseling Association.
Sue, D.W., Ivey, A.E. and Pedersen, P.B. (1996). A Theory of Multicultural Counseling and Therapy.
Pacific Grove, CA: Brooks/Cole.
Sue, D.W. and Sue, D. (1990). Counselling the Culturally Different: Theory and Practice. (2nd ed.). New
York: Wiley.
When Counsellors Cease to Practice
There are many legal, ethical, and personal issues that may arise when counsellors cease their
professional counselling practice. The cessation of counselling practice may be permanent or temporary,
sudden or well planned and gradual, and can occur for a wide variety of reasons, including: disciplinary
action, illness, disability, death, retirement, or other personal reasons. Whatever the reason for such a
decision, counsellors should be aware of the concerns that typically arise under such circumstances and
understand the many obligations associated with any such event.
• The mode of practice is one critical factor to consider in planning for the cessation of counselling
services. Since work environments vary from sole practitioner to partnerships, public and
private service corporations, and so forth, it is essential to be aware of all the expectations and
obligations associated with the mode of practice in which the counsellor is working. It may be
necessary to seek legal counsel since there can be legal obligations beyond those typically
associated with the practice of counselling. In some work settings the appropriate legal advice
may be available from the employer.
• Counsellors can best prepare for the inevitable termination of their practice by seeking to
understand and clarify at the very beginning of their professional employment or practice
partnerships all the relevant expectations and obligations, including what happens when they
cease to practice.
• Whatever the circumstances of the cessation counsellors continue to have an overriding
obligation to fulfill their ethical obligations to their clients. These include, managing client
confidentiality, obtaining informed consent, the security and disposition of client records, taking
steps to avoid client abandonment, and respecting restrictions on the sale of a practice.
• CCA members working in private practice are expected to maintain client counselling records for
at least seven years. This period could be longer in other employment situations and where
there may be other expectations with respect to records. Counsellors should ensure that
following termination of practice client records are secured long enough to meet these
obligations and that they are accessible to clients for treatment, legal, or personal needs.
Retention of records can also help to assist the counsellor should there be an ethical complaint
lodged against the counsellor following the cessation of practice or should there be liability
against the counsellor’s estate.
• An estate executor acts on the wishes of the deceased counsellor with respect to his/her
professional obligations. This could include determining a location where client records can be
stored, notifying clients of the death of the counsellor and where their records are secured,
obtaining the wishes of the clients regarding the disposition of their records, and obtaining the
consent of the clients to transfer their records. Counsellors are advised to develop the directions
to be followed with respect to their professional obligations in case they continue to have such
obligations at the time of their death.
• Counselling records should not be transferred to another professional without the consent of
the client. In general, clients should have the choice of obtaining a copy of their record, having
the record transferred to another practitioner, or agreeing to have their record remain in
storage. Clients should be notified of the location when their records are stored in the offices of
another practitioner. Newspaper announcements can assist with a notification about the closing
•
•
•
of a practice, particularly to difficult to find clients and also serve to provide general information
to them as to who to contact with respect to their counselling records.
The sudden termination of counselling services due to an unexpected illness or disability, or the
sudden death of a counsellor would not be considered as client abandonment. Nevertheless,
counsellors can act to minimize any negative consequences for their clients by developing plans
in case of such events and making these plans known to the clients either within the counselling
discourse or by way of agency literature made available to clients.
When counsellors are aware ahead of lime that their practice will cease within a known time
frame they should begin the process of counselling termination with those clients for whom it is
appropriate to do so. For clients needing continued counselling services, counsellors should
begin a briefing process with them to facilitate referrals to other practitioners. These may be
colleagues within the counsellor’s workplace or to practitioners working in other locations. In
any case, counsellors should act to meet the requirements of informed consent during this
transfer process. (See page 26 , CCA Standards of Practice for Counsellors)
Counsellors may consider selling their private practice. However, only tangible assets can be
sold and the names of clients and their records cannot be included in such a sale. If a counsellor
wanted to transfer her/his clients to a new practitioner/owner this could only be accomplished
by following an informed consent process for each client in which each client would decide
whether or not his/her name and/or his counselling record could be transferred.
Clearly, the cessation of a counselling practice, for whatever reason, and whether temporary or
permanent can be a challenging process with many associated obligations. The paramount
consideration for all counsellors in such circumstances is to act in ways to fulfill their ethical and legal
responsibilities and in a manner to avoid or minimize any harm for their clients.
A Useful Resource for Counsellors
There have been situations in which counsellors and other professionals have been asked to submit to
the court or legally constituted tribunal information about the scoring procedures and other
psychometric protocols involved in the scoring of psychometric instruments such as the Wechsler
Intelligence Scales. Disclosure of this type of information can have the effect of invalidating the future
use of these instruments and impairing the ability of the publishers to engage in responsible commercial
practices as well as violating copyright protection. Despite necessary and appropriate protest
counsellors and others may receive a court order or subpoena to comply. Should you receive such a
request or know of a colleague facing such a challenge you can find very helpful information at the
website of the Psychological Corporation that provides policies, legal arguments and some case law on
such matters. Counsellors and their lawyers are directed to
http://psychocorp.com/sub/legalaffairs/releasepolicy.html. Should the psychometric instruments
involved in the dispute be published by the Psychological Corporation you are invited to call then for
further advice.
I extend my thanks to Dr Todd Kettner, a psychologist in Nelson, BC for making this information
available.
As always, I invite members to contact me with respect to this Notebook entry. You might wish to
submit a response to this topic that could be published in the next Cognica. The invitation is once again
extended to all our members to consider making a contribution to the Notebook on any ethical, legal, or
standards issue that might be of interest to professional counsellors in Canada.
Aide-mémoire sur la déontologie, les questions d’ordre juridique, et les normes pour les conseillers
Il me fait plaisir d’accueillir Dan et Lawrence comme les premiers invités de la chronique Aide-mémoire.
Ces membres de l’ACC ont longuement réfléchi sur les défis déontologiques afférents aux conseillers qui
utilisent Internet dans l’exercice de leur profession. J’invite les autres à suivre leur exemple et à
apporter leur contribution à la chronique Aide-mémoire.
Glenn Sheppard
La déontologie, le courriel et la profession de counseling
Par Dan L. Mitchell et Lawrence J. Murphy
L’Utilisation du courrier électronique pour communiquer entre collègues et autres professionnels est
une expérience quotidienne pour la plupart des conseillers. La communication par courriel avec les
clients est moins fréquente. Cependant, beaucoup de conseillers correspondent par courrier
électronique avec des clients, ne serait-ce que pour remettre un rendez-vous ou pour clarifier une
facture. Malgré l’utilisation quotidienne du courrier électronique, nous pouvons ne pas être conscients
de bon nombre de questions pratiques et éthiques qui méritent un examen sérieux. Par le biais de cet
article, notre intention est de mettre en garde des conseillers contre de sérieux problèmes potentiels et
de les inciter à envisager les options possibles pour les éviter.
Le scénario ≪simulation≫
≫
Aujourd’hui, vous avez pu avaler une bouchée pour le déjeuner. Il est 12h55, mardi, et vous décidez de
vérifier votre courrier électronique avant notre séance de counseling de 13h.
Vous y trouvez trois nouveaux messages. Un d’entre eux provient d’un expéditeur que vous ne
reconnaissez pas. Votre première réaction est de croire que ce message est un courriel-poubelle, mais
alors vous remarquez l’objet ≪À l’aide!≫.
À l’affichage du message, la lecture du texte vous alerte :
≪Salut, je suis au bout du rouleau. Personne ne m’aide. Cette fois je vais m’assurer que ça va marcher …
≫
Vous savez que vous devez faire quelque chose, mais que pouvez-vous faire? Vous cherchez un nom, un
numéro do téléphone ou tout autre élément d’identification. Vous vérifiez l’adresse du courriel en
espérant trouver un indice, mais ce n’est d’aucune aide : ≪[email protected]≫.
Résistant à l’impulsion de panique, vous imprimez une copie du courriel de détresse et vous la donnez à
votre secrétaire en espérant qu’il saura quoi faire. Il ne sait pas, mais il suggère de téléphoner au service
de police pour voir si l’on peut retracer la provenance du message.
≪Bonne idée≫, que vous répondez, pendant que vous essayez de vous concentrer sur votre client qui
est dans la salle d’attente…
Bien que ce scénario soi fictif, il pourrait être vrai. Le message aurait pu être une dénonciation de
mauvais traitement d’enfants. Il aurait aussi pu signaler une intention possible de commettre un
homicide. Nous devons supposer que ce n’est qu’une question de temps avant que nous recevions un
message d’urgence par courriel.
Préoccupations pratiques et déontologiques
Il y a évidemment beaucoup de préoccupations de nature pratique et déontologique. Voici quelques-uns
des problèmes considérés parmi les plus sérieux qui suscite la facilité avec laquelle on peut accéder à
l’adresse de courriel des conseillers.
1. La confidentialité du client
La plupart des organismes et des praticiens en counseling ont des adresses électroniques normales (c.à.-d. non sécurisées) et rendent ces adresses publiques, que ce soit par la publicité, sur leurs cartes
professionnelles ou sur leur papeterie. Dès que cette adresse circule, elle est disponible à quiconque a
accès à l’Internet.
Le courrier électronique normal n’est pas sécurisé et ne protège pas la confidentialité du client. Même
si vous ne voulez que confirmer la date et l’heure d’une nouvelle séance, le message de réponse du
client pourrait contenir des renseignements très confidentiels (p. ex. ≪Je suis en fait heureux d’avoir
une autre semaine pour réfléchir. Je me suis rappelé d’autres détails depuis notre conversation de la
semaine dernière au sujet de…≫).
2. Les noms de domaine
Beaucoup d’adresses électroniques d’organismes et de praticiens de counseling renferment des noms
de domaine qui révèlent leur profession. (Un nom de domaine est la partie de l’adresse électronique qui
suit le ≪@≫.) Le fait de rendre publiques de telles adresses électroniques compromet la confidentialité
des communications avec le client. Par exemple, imaginez une cliente qui utilise l’ordinateur de la
maison, aussi utilisé par son enfant, pour envoyer un message électronique normal à info@
counsillerbob.ca. Les définitions par défaut du logiciel de courrier électronique font que les ordinateurs
gardent en mémoire une copie de tous les messages envoyés. À moins que cette cliente ait effacé ses
≪messages envoyés≫, son enfant peut facilement découvrir que sa mère recherche un conseiller
personnel.
3. Incapacité de réagir à une urgence
Si les clients ou des clients potentiels acheminent de l’information sur une situation d’urgence en
utilisant le courrier électronique normal, les praticiens et les organismes en counseling peuvent être
dans l’impossibilité d’intervenir, puisque le courriel pourrait ne pas contenir assez d’information pour
en retracer son origine géographique.
C’est très différent du cas de quelqu’un qui téléphone à un organisme pour faire part de ses pensées
suicidaires. Le client au bout du fil, on peut lui parler, peut-être pour lui fixer un rendez-vous ou pour le
diriger vers un service d’aide d’urgence. En pareil cas, vous savez au moins que le client a reçu vos
conseils. En cas d’urgence grave, la police peut retracer l’appel téléphonique et acheminer l’aide
approprié.
4. L’assurance de responsabilité civile
On ne sait toujours pas si l’assurance de responsabilité civile couvre les professionnels du counseling qui
n’ont pas minimisé les risques mentionnés ci-dessus.
Les solutions possibles
Nous suggérons que les organismes et praticiens de counseling considèrent les options suivantes :
1. Éviter de publier les adresses électroniques normales. Cette option, bien qu’elle soit raisonnable du
point de vue déontologique, peut n’être ni pratique pour les clients ni utile pour les praticiens et
organismes qui tentent de promouvoir leurs services.
2. Publier les adresses électroniques normales avec une mise en garde claire stipulant que les clients
doivent renoncer à leur droit à la confidentialité. Cette option offre la possibilité au client de
renoncer à la confidentialité de la communication.
Bien qu’une mise en garde informe les clients de l’enjeu de la confidentialité, elle soulève d’autres
questions importantes. Si les clients désirent avoir accès aux conseillers professionnels par courriel
électronique, est-il éthique de leur demander de renoncer à leur droit à la confidentialité pour
parer à notre incapacité de les protéger? Est-ce qu’une renonciation à la confidentialité résisterait à
un examen légal minutieux?
En vue d’aborder la question des noms de domaine (la deuxième préoccupation déontologique cidessus), les adresses électroniques publiées devraient être soit génériques (p. ex.
[email protected], [email protected]) ou d’une quelconque autre façon, masquer tout lien avec la
profession de counseling (p. ex. [email protected]).
De plus, si les conseillers appliquent cette deuxième option, il est essential que la mise en garde
comprenne aussi une demande aux clients d’inclure leurs coordonnées de base. Ceci permettrait
alors aux praticiens et aux organismes d’intervenir en cas d’urgence.
Cependant, il s’agit aussi d’une solution peu souhaitable parce que la mise en garde et la demande
se contredisent. En fait, la mise en garde sur le manque de la confidentialité pourrait inciter les
clients à ne pas discuter d’affaires personnelles. Ils se retrouvent ainsi en situation contradictoire
s’ils doivent inclure leur adresse personnelle ou leur numéro de téléphone dans un message
électronique non-sécurisé.
3. Offrir aux clients un service de courrier électronique sécurisé avec capacité de collecter les
coordonnées. Cette option résout plusieurs problèmes, mais on doit porter une attention
particulière aux points suivants :
Premièrement, si les conseillers doivent offrir un service de courrier électronique sécurisé à leurs
clients, est-ce que ceux-ci devront télécharger et installer un logiciel à cette fin? Si oui, il y a risque
que le processus de téléchargement et d’installation du logiciel incommode encore plus les clients.
Idéalement, quel que soit la solution de messagerie sécurisée offerte, l’utilisation devrait réduire au
minimum toute forme d’exigence ou de compétence technique de la part des clients. De plus, il
faudrait offrir un contact téléphonique aux clients qui éprouvent des difficultés techniques.
Deuxièmement, la question des noms de domaine demeure. Les professionnels devraient choisir
une façon de sécuriser le courrier électronique avec possibilité de choix de noms de domaine qui
masquent tout lien avec le counseling.
Troisièmement, l’offre aux clients de courrier électronique sécurisé devrait être intégrée au
processus de collecte de leurs coordonnées. Ceci minimise l’effort imposé aux clients pour obtenir
leurs coordonnées par un processus différent. De plus, le processus de collecte et de stockage de ces
coordonnées devrait être sécurisé (p. ex. en hébergeant la base de données sur un serveur
sécurisé). Autrement, encore une fois la confidentialité est compromise.
Conclusion : prise de conscience et technologie appropriée
De nos jours, dans la plupart des professions, on constate que le rythme rapide des découvertes
technologiques devance celui de l’évolution de la déontologie. Le domaine du counseling ne fait pas
exception. Dans cette profession comme ailleurs, les enjeux d’ordre pratique et déontologique liés à la
publication d’adresses électroniques normales n’ont pat étés bien reconnus. La plupart des codes
d’éthique qui se rapportent spécifiquement aux communications par internet avec des clients stipulent
la nécessité de sécuriser nos communications de façon à ce que la confidentialité de l’information soit
assurée. Ce n’est pas une hyperbole que de donner à penser que l’utilisation du courrier électronique
non-sécurisé par les professionnels du counseling puisse être la violation la plus répandue de la
déontologie du counseling de toute l’histoire de notre profession.
La prise de conscience est la première priorité. En soulevant la question, nous voulons encourager la
discussion et la réflexion. À mesure que la profession étudie du plus près l’utilisation du courrier
électronique, nous espérons que les conseillers sauront faire le nécessaire pour un choix et une
utilisation d’une technologie de la sécurité appropriée. Il existe des solutions. Le fait est qu’il ne serait
pas trop difficile pour un courriel confidentiel qui entre ou qui sort d’un bureau de counseling. Par
exemple, un(e) ex-conjoint(e) fâché(e) pourrait faire beaucoup de tort à son ex-partenaire et à la
profession de counseling tout entière par un simple geste semblable. Il nous incombe à tous de nous
assurer que ce genre de désastre ne puisse tout simplement pas se produire.
Dan L. Mitchell, CCC, et Lawrence J. Murphy sont les fondateurs de ≪thérapie en ligne≫ (therapy
online) (www.therapyonline.ca). Et d’un service de counseling en ligne, établis en 1995. Ils ont été des
pionniers dans l’élaboration de solutions technologiques sécuritaires pour les conseillers, de codes
d’éthique pertinents et de compétences de counseling en ligne.
Courriel : [email protected]
Téléphone : 1-88THERAPY-4
Aide-mémoire sur l’éthique…
Quelques décisions intéressantes tirées de la jurisprudence
Comme cous le savez, l’interprétation et le développement de nos normes professionnelles et de nos
pratiques éthiques peuvent être grandement influencés par les jugements de not tribunaux, aussi bien
que par ceux des organismes quasi-judiciaires, par exemple ceux rendus par les commissaires
provinciaux chargés de l’accès à l’information et du droit de la vie privée. J’ai choisi quelques exemples
intéressants pour démontrer ce point :
Cas no 1 : Les notes d’un conseiller d’orientation
En 1995, une mère qui demeurait dans le district scolaire de Cranbrook, en Colombie-Britannique, a
demandé à voir les notes prises par la conseillère de l’école élémentaire au cours des sessions avec ses
deux enfants. Elle disait que ce qui l’intéressait n’était pas ce que les enfants avaient dit à la conseillère
mais plutôt ce que la conseillère leur avait dit.
La conseillère de l’école et la Commission scolaire ont refusé de lui transmettre les notes des sessions.
La Commission scolaire a fait savoir qu’un tel refus était permis, selon l’article 19(1)a de la loi d’accès à
l’information et de la protection de la vie privée (FIPPA) de la Colombie-Britannique. Cet article de loi
permet le refus discrétionnaire d’une telle demande si l’on pense que sa divulgation peut nuire à la
santé mentale ou physique de la ou les personnes concernées. La mère en a référé au Commissaire de
l’information et de la vie privée de la C.-B. pour qu’il statue sur cette décision de refus. Le commissaire a
décidé que les notes de la conseillère étaient la propriété et sous le contrôle de la Commission scolaire,
ce qui signifie que le Commissaire avait le droit de statuer sur la gestion perce que de telles notes
étaient couvertes par les clauses de la FIPPA.
N’étant pas d’accord avec la décision du Commissaire, la conseillère a fait appel au tribunal. Elle a
soutenu devant le tribunal que ses notes étaient sa propriété, qu’elle n’en prenait que pour s’aider et
que, de toute façon, elle estimait qu’elle n’était pas tenue de garder les notes prises au cours de ses
sessions et qu’elle les gardait dans un cahier chez elle.
Le tribunal a statué en faveur du Commissaire en disant que les notes étaient la propriété de la
Commission scolaire et étaient sous son contrôle parce qu’elles faisaient partie d’un aspect du travail de
la conseillère et que cette dernière était une employée de la Commission. Dès lors, la question de l’accès
aux notes des sessions tombait sous l’autorité de la Loi de l’accès à l’information et de la protection de
la vie privée.
En dépit de ce jugement sur la juridiction, la question de savoir si ou non on devrait avoir accès aux
notes dans un tel cas demandait plus ample réflexion. À ce sujet la conseillère soutenait qu’elle avait
l’obligation éthique de protéger la confidentialité de ses notes. Le tribunal comprenait ce position, mais
le problème soulevé devant le tribunal n’était pas celui de divulgation, mais plutôt de juridiction. Le juge
a manifesté une certaine inquiétude en ce qui a trait à la protection des droits de la vie privée des
enfants. On a souligné que dans le cas d’un enfant, le parent ou le tuteur a normalement le droit de
consentir à la divulgation du dossier de counseling de l’enfant. Dans ce cas précis, c’était un parent qui
demandait la divulgation; elle devenait ainsi en mesure de consentir à sa propre requête. Il est certain
que cela soulève le problème de la protection de la vie privée! Au fait, celle décision ne diminuait pas
nécessairement la responsabilité de la conseillère scolaire de considérer ses notes comme information
confidentielle (Neilson c. la Colombie-Britannique (Commissaire du Droit d’accès à l’information et de la
protection de la vie privée. 08/07/1998. B.C.J. No 1640, Vancouver, C.-B.)
Cas no2 : Le licenciement d’un travailleur social
En juillet 2000, le Cour suprême de Terre-Neuve a rejeté la plainte d’un travailleur social qui prétendait
avoir été injustement renvoyé pour mauvaise conduite. Entre 1979 et 1981, le travailleur social
travaillait comme conseiller auprès des jeunes dans un centre de détention pour filles de St-Jean où une
jeune fille admise à 14 ans est devenue une de ses clientes. La Cour a reconnu que le conseiller avait eu
des rapports sexuels consensuels avec la jeune fille dès ses 16 and alors qu’elle vivait en hébergement
collectif communautaire. Cette relation a continué pendant presque trois ans et n’a été dévoilé par la
jeune fille qu’en 1995. À ce moment-là, le travailleur social était devenu superviseur régional pour le
Centre de détention des jeunes, là où lui et la jeune fille s’étaient rencontrés pour la première fois. La
Cour a décidé que le renvoi par l’employeur n’était pas une conséquence déraisonnable pour ce genre
de conduite. À la lumière de ce cas, les lecteurs aimeront peut-être revoir l’interdiction de postrésiliation tell qu’elle est énoncé dans le Code d’éthique de l’ACC. (Evening Telegram, St-John’s (T.-N.),
15/07/00)
Cas no 3 : L’accès aux questions, aux réponses et aux procédures à suivre pour compter les points dans
des tests standards
En 1994, des parents qui demeurent dans la juridiction du conseil de l’éducation du comté de Lincoln
souhaitaient contester le jugement du psychologue scolaire à l’effet que leur fille n’était pas surdouée.
Pour ce jugement, le psychologue s’était fié dans une large mesure sur les résultats des échelles
d’intelligence du test Stanford-Binet.
Nonobstant la demande des parents faite en vertu du ≪droit d’accès à l’information≫, le conseil
scolaire leur a refusé l’accès aux réponses et aux modalités de notation qui ont servi à l’évaluation de
leur fille à l’aide du test Stanford-Binet. Les autorités scolaires ont soutenu qu’elles avaient un droit de
refus discrétionnaire en s’appuyant sur un article de la loi ontarienne sur l’accès à l’information et la
protection de la vie privée.
De plus, on a fait valoir que le test Stanford-Binet avait été acheté d’une tierce partie, en l’occurrence,
Nelson Canada, et que le maintien de la confidentialité des réponses et des procédures de notation était
essential pour le maintien de l’intégrité et de la validité de cet instrument psychométrique. Nelson
Canada soutenait aussi que la divulgation dévoilerait un secret professionnel, ce qui aurait des
conséquences économiques pour eux.
Quand les parents ont soumis cette affaire au commissaire de l’accès à l’information et de la protection
de la vie privée, ce dernier a décidé que le test de créativité d’une page élaboré par le Conseil scolaire
devrait être mis à la disposition des parents avec une copie des 14 pages du cahier Stanford-Binet sur
lesquelles les réponses de l’élève avaient été enregistrées. Le conseil scolaire a refusé l’injonction et
porta l’affaire en justice parce que la divulgation de ce cahier aurait pour effet de dévoiler les pages de
notation d’invalider le test. Le conseil a laissé entendre que le commission (dans ce cas-ci, en fait, une
commissaire-adjoint) avait ignoré les conséquences de la divulgation de ses pages, notamment celles
qui traitent des sections Vocabulaire et Absurdités du test. La Cour s’est dite pleinement d’accord avec
le conseil scolaire et a considéré la décision du commissaire comme déraisonnable pare qu’il n’avait pas
tenu copte des conséquences sur la validité du test. La décision de commissaire a été renversée par la
Cour et le Conseil n’a pas eu à divulguer les informations sur le test Stanford-Binet. (Lincoln County
Board of Education c. Ontario (Information and Privacy Commissioner). [1994] O.J.No 2899 (Div. Ct.)
Cas no 4 : Le droit d’une jeune personne à donner son accord selon la common law
(J’inclus ce jugement d’il y a quatorze and parce qu’il en avait étonné plusieurs à l’époque. Aussi parce
que le concept d’aptitude à donner son accord est apparu depuis lors et qu’il a préséance sur toute
limite d’âge arbitraire comme dans le concept de ≪mineur≫.)
Dans ce cas, une jeune fille de seize and enceinte avait quitté le domicile pour chercher à se faire
avorter. Ses parents s’y opposaient pour des motifs d’ordre moral. Ils se sont adressés au tribunal pour
empêcher l’avortement en soutenant qu’elle n’était pas apte à prendre une telle décision. Même si dans
les circonstances le tribunal a exprimé de l’empathie pour les parents, il a conclu que la jeune fille
comprenait la procédure d’avortement et les risques qui y étaient associés. Elle a donc été jugée apte à
donner son accord en connaissance de cause et les objections de ses parents ont été rejetées. Il est
intéressant de constater que le tribunal a statué que le droit d’un parent à prendre des décisions pour le
traitement de son enfant s’arrêtait si et quand l’enfant atteint un niveau de connaissance et
d’intelligence suffisant pour comprendre pleinement le traitement proposé ou recommandé.
(C.c. Wren, 1987, 35 D.L.R. (4th) 419, Albert)

here - Canadian Counselling and Psychotherapy Association

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